Petition for Writ of Certiorari — Calamia v. Singletary

No. 94-

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1994

e

RUSSELL CALAMIA,

Petitioner,

Vv.

HARRY K. SINGLETARY, JR.

Secretary, Florida Department

of Corrections,

Respondent.

°

Petition For Writ of Certiorari to the

Florida Supreme Court

PETITION FOR WRIT OF CERTIORARI

5

John D Middleton, Esq. John D. Middleton, Esq.

Wendy M. Edmonds, Esq.

Route 3, Box 3050 Route 3, Box 3050

Melrose, Florida 32666 Melrose, Florida 32666

(904) 475-1357 (904) 475-1357

Counsel on Petition Counsel of Record

for Petitioner

RS tra pe a BN RM =e

QUESTIONS PRESENTED

1. Whether the retroactive application of the exclusions from

eligibility for provisional release credits in Section 944.277(1) (i), Florida

Statutes (Supp. 1992), to offenses committed before the effective date of the

statute and the effect of the passage of section 944.278, Florida Statutes (1993)

violate the prohibition against ex post facto laws in Article I, Section 10,

Clause 1 of the United States Constitution.

2. Whether the retroactive application of the exclusions from

eligibility for provisional release credits in Section 944.277(1) (i), Florida

Statutes (Supp. 1992) and Section 944.278 Florida Statutes (1993), is an

unconstitutional violation of the prohibition against Bill of Attainder con-

trary to Article I, Section 10, of the United States Constitution.

3. Whether Section 944.277(1) (i), Florida Statutes (Supp. 1992) and

Section 944.278 Florida Statutes (1993), which destroyed Petitioner’s liberty

interests in granted provisional credits, destroyed his liberty interest in

release on his provisional release date, and destroyed his liberty interests

in the procedures for revocation of his liberty interest, on its face or as

applied to the Petitioner deprives the Petitioner of liberty and property

without fair notice and procedure in violation of the Fourteenth Amend-

ment to the United States Constitution.

STATEMENT CONCERNING THE PARTIES

The parties to the habeas corpus proceedings before the Florida

Supreme Court were Petitioner, RUSSELL CALAMIA and Respondent,

HARRY K. SINGLETARY, JR., in his official capacity as Secretary for the

Florida Department of Corrections.

“i

TABLE OF CONTENTS

Page

Questions presented ........c.ccssssserereeseseseresssseserses sevenecesconensnesewesesconenrseneseses i

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Constitutional and statutory PrOViSIONS ........::ccscccesssssesesseceseresssnesesestenenees 1

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TABLE OF AUTHORITIES

Cases

Arnold v. Cody,

S51 F.2d FBO (10th Cir. 1991) ..-cnccovrecscssarecorerccsevcevenecees

Costello v. Waignwright,

397 F. Supp. 20 (M.D. Fla 1975) ........:ssssssereeessenesnenenees

Dobbert v. Florida,

432 US. 282 (1977) sccccccvcscvssssssssessseeeee IE co ON

Gagnon v. Scarpelli,

BE8 UR FIO CIID cerecescccncenesvevenrevevevennesevencenevensenens

Griffin v. Singletary,

GBB Soo, 2d SOO Clin. 1994) caccenceveeeeeeveneccsccccscnccccsocorecene

Kentucky Dept. of Corrections v. Thompson,

EEO

Landgraf v. USI Film Products,

ine

Logan v. Zimmerman Brush Co.,

LL SS

Miller v. Florida,

STE eco

Nixon v. Administrator of Gen. Servs.,

Cee

snnevinaianiii 8,9

pesnedieisneen 12,14

presseuneonasennees 12

POO eee eee ee eeeeee

iv

TABLE OF AUTHORITIES - Continued

Raske v. Martinez,

BPS RA BEDS a Ge, TE creercentrcercnievmnniinnainininaien 8

Selective Services System v.

Minnesota Public Interest Research Group,

SEB UTS, OEE IDI cccecereesenesrcsersiemmarneniennenmmniinnmneninmnnsiiti 10

Superintendent, Mass. Correctional Inst., Walpole v. Hill,

G2 US, GE GED ccenevsercrcinecenssnmennserspnseninunsenmmnainnseatarinanintin i4

Weaver v. Graham,

FUE SD cetenicttscnceneeitnvininnstcigpiteanienienininainialiaa 6,7,8,9

Wolff v. McDonnell,

SEB US, TID RIG DD cccersosncsenesscinersemsmvensnsconsennnnsannavinonnnintnnet 12,14

Constitut

Article I, Section 10, cl. 1,

Coswtitustion of thre Uraitedd Stats ...c0ccccceccccsneccsscccvsnevocesncsecssescovsssosesees 6, 10

Amendment XIV, Section 1,

Constitution of the Uritedd States .~....ccccccecccsosccecerecovecseveccvsczccsneceessecesossecs 12

—_ at ”

Section 944.276 Florida Statutes

Section 944.277 Florida Statutes

Gea. 1986 ~ Dense. BID) concvcsveesreevenesssnenesanccievieoneen 3, 4, 5, 6, 8, 9, 10, 11, 13

TABLE OF AUTHORITIES - Continued

Section 944.278 Florida Statutes

Sections 33-28.0019(1) - 33-28.002,

FE ee catieritenstitecnenetisnanucennintansnstitiatineiaisisdiniitninsiiibanmaaaanisii 13

Other Authority

Florida Attorney General’s Opinion 92-96,

1992 Annual Report of the Attorney General of Florida, 283.0... 11

R. Handberg and N. Holten,

Reforming Florida’s Sentencing Guidelines:

Balancing Equity, Justice, and Public Safety (1993) .......:-:cscscssseseesssseeseseeeeees 11

B. Walsh,

Inmates Identify A Secret State Round-Up Wrongly Released,

Sean Sentinal, Jaremarry 15, VOSS a0 TD ...acccccrennssnrsensnsveccorssmmayectcooninsantssvseseess 11

OPINIONS BELOW

The opinion of the Florida Supreme Court in the underlying cause

is set out in Appendix to this petition at A1.

JURISDICTION

The opinion of the Florida Supreme Court (A1) was entered on

September 15, 1994. This Petition therefore is timely. Rule 13.

This Court has jurisdiction pursuant to 28 U.S.C. § 1257(a).

CONSTITUTIONAL AND

STATUTORY PROVISIONS

Article I, Section 10, cl. 1 Constitution of the United States:

“No State shall . . . pass any Bill of Attainder . . .”

“No State shall . . . pass any ex post facto law. . .”

Amendment XIV, Section 1, Constitution of the United States:

No State shall...deprive any person of life, liberty, or property,

without due process of law;

STATEMENT OF THE CASE

On July 27, 1994 the Petitioner filed a petition for writ of habeas corpus

before the Florida Supreme Court. The Florida Supreme Court denied the

petition for a writ of habeas corpus on September 15, 1994. (A1).

The petition raised three issues: whether the retroactive application of

exclusions from eligibility for, and cancellation of, provisional gain time

credits violates the Ex Post Facto Clause of the United States Constitution,

whether the cancellation of provisional credits is an unconstitutional

violation of the prohibition against bill of attainder and lastly, whether the

cancellation of provisional credits without notice or hearing violates the

Petitioner’s due process rights under the United States Constitution.

The verified petition relied on the following facts. On or about January 28,

1986, Petitioner was charged by indictment with one count of first degree

murder, a capital felony punishable by life imprisonment or death, alleg-

edly committed on January 3, 1986. In December of 1987 ajury was selected

for Petitioner's trial and the trial began shortly thereafter.

The state attorney and Petitioner’s trial attorney held extended plea nego-

tiations before and during trial. During trial, the state attorney offered to

reduce the charge to one count of second degree murder in exchange for

Petitioner's plea of nolocontendreor guilty. Inexplaining this offer, Petitioner's

trial attorney explicitily assured Petitioner that Petitioner would be eligible

to earn administrative gain time and “good time” which would be applied

toreduce hissentence after Petitioner completed any minimum mandatory

portion of Petitioner’s sentence.

Based on his irial counsel's assurances, Petitioner agreed to enter a plea of

nolo contendre to second degree murder. Petitioner materially relied on his

future eligility for administrative gain time and a possibility of a decreased

sentence under section 944.276, Florida Statutes (1987) in deciding to agree

to enter a plea of nolo contendre.

sia

On December 10, 1987, the Circuit Court of the Eighteenth Judicial Circuit,

Brevard County, Florida, accepted the negotiated plea under which the

petitioner pleaded nolo contendre to second degree murder.

On January 14, 1988 the trial court sentenced Petitioner to a term of

incarceration of twenty years, including a three year minimum mandatory

sentence for use of a firearm. Petitioner was accredited with 250 days

towards his sentence for time previously served.

Petitioner is currently confined at Polk Correctional Institution pursuant to

that judgment and sentence.

There are no other sentences, concurrent or consecutive, pending against

Petitioner. Petitioner was eligible at the time of his conviction for adminis-

trative gain time under section 944.276, Florida Statutes (1987), excluding

the three year minimum mandatory portion of the sentence.

Section 944.276(1) Florida Statutes (1987) provided that when the inmate

population reached 98 percent of lawful capacity the Secretary of the

Department of Corrections [DOC] had authority to award up to 60 days

administrative gain-time to all inmates who were earning incentive gain

time. The DOC Secretary awarded administrative gain-time to all eligible

DOC inmates from February 16, 1987 until June 30, 1988.

On June 18, 1988 the Florida Legislature repealed section 944.276 and

substituted the Provisional Credits Act. Act of June 18, 1988, ch. 88-122, §5,

1988 Fia. Laws 527,535 (codified, as amended, at § 944.277, Fla. Stat. (Supp.

1988-1991)). The 1988 Act lowered the triggering percentage from 98

percent to 97.5 percent and required the DOC to give credits to all eligible

inmates earning incentive gain time. Act of June 18, 1988, ch. 88-122, §5, 1988

Fla. Laws 527,535 (codified, as amended, at § 944.277(1),(4) Fla. Stat. (Supp.

1988-1991)). DOC immediately began awarding provisional credits and

continued to doso until the section 944.277 Florida Statutes was repealed in

1993.

On May 8, 1990 Petitioner completed his three year minimum mandatory

sentence and the DOC began to award Petitioner both incentive gain time

for meritorious behavior and provisional credits under the 1988 Provi-

sional Credits Act.

The DOC awarded Petitioner a total of 420 days (1 year, 1 month and 25

days) provisional credits between May 8, 1990 and January 1991 inaddition

to Petitioner's accrued incentive gain time. Petitioner’s provisional release

date was August 23, 1998 based on provisional credit days actually

awarded to Petitioner through January 1991.

Effective July 6, 1992, the Florida Legislature amended Section 944.277(1)

and excluded persons incarcerated for second-degree murder from provi-

sional release credit eligibility. The statute did not state it was to be applied

retroactively.

On December 29, 1992 the Attorney General of Florida, Bob Butterworth,

issued Attorney General Opinion 92-96. 1992 Op. Att’y Gen. Fla. 092-96

(December 29, 1993) 1992 Annual Report of the Attorney General of Florida

283. The Attorney General interpreted the 1992 amendments to the

provisional release law to require the DOC to apply the exclusions in section

944.277 (1) (h) and (i) retrospectively to all inmates in the custody of the

DOC on July 6, 1992. Id. at 288. In addition the Attorney General instructed

the DOC to void all provisional credits previously awarded to offenders

covered by section 944.277(1) (h) and (i). Id.

On. “ay 7, 1993, pursuant to the Attorney General's opinion, the DOC

applied the amended exclusions retroactively and revoked Petitioner's 420

accumulated days of provisional release credits and canceled Petitioner’s

provisional release date of August 23, 1998. The DOC canceled Petitioner’s

accumulated provisional release credits without notice to Petitioner or

opportunity for hearing by the Petitioner.

On June 17, 1993 the Florida Legislature’s Safe Streets Initiative of 1994, ch.

93-406, §§ 32, 35, 44, 1993 Fla. Laws 29 (§35 to be codified at § 944. 278, Fla.

Stat. (1993) became effective. Section 35 of the Safe Streets initiative of 1994,

codified at section 944.278 Florida Statutes (1993), canceled all administra-

tive and provisional credits awarded under prior overcrowding credit

statutes.

Had the Petitioner's credits not been canceled by the DOC, pursuant to the

Attorney General’s opinion, they would have been lost due to provisions

of section 944.278 Florida Statutes (1993).

As a direct result of the retroactive application of section 944.277(1)(i)

Florida Statutes (Supp. 1992) and the passage of section 944.278 Florida

Statutes (1993). Petitioner’s sentence is 420 days longer than it would have

been under the statute that was in force when he was sentenced.

Additionally, Petitioner has lost the opportunity to continue to earn provi-

sional credits as he was eligible to do under section 944.277, Florida Statutes

(Supp. 1988-1991) at the time he wassentenced. Petitioner would be entitled

to immediate release if Petitioner had continued to accrue provisional

credits through the present.

Respondent Singletary is the Secretary of the Florida Department of Correc-

tions and is ultimately responsible for Petitioner’s custody.

REASONS FOR GRANTING THE WRIT

1. Question i above stated: Whether the retroactive application of

the exclusions from eligibility for provisional release credits in Section

944.277 (1)(i), Florida Statutes (Supp. 1992), to offenses committed before

the effective date of the statute and the effect of the passage of section

944.278, Florida Statutes (1993) violate the prohibition against ex post

facto laws in Article I, Section 10, Clause 1 of the United States Constitu-

tion.

This Courtshould grantcertiorari tosettle a conflict in application of the law

of this Court, uphold a fundamental federal right, and determine an issue

of great public importance.

Article I of the Untied States Constitution mandates that no State shall pass

any “Ex Post Facto Law.”U.S. Const., art. I section 10 cl. 1. This Court has

held that this basic statement of law is to ensure that citizens receive notice

of the substance and effect of the laws of the land and allows individuals to

rely on their content and meaning. Weaver v. Graham, 450 U.S. 24, 28 (1981);

Dobbert v. Florida, 432 U.S. 282, 298 (1977).

This Court has previously instructed the State of Florida that a law is in

violation of the ex post facto clause if it (1) is retrospective in that it applies to

events which took place before its passage and (2) disadvantages the

individual affected by it. Weaver v. Graham, 450 U.S. 24, 29 (1981); Miller v.

Florida, 482 U.S. 423, 433-34 (1987).

The provisions of both Section 944.277, Florida Statutes (1992) and 944.278

Florida Statutes (1993) are retroactively applied to inmates who were

convicted for acts committed before the effective date of the statutes.

Additionally, both statutes, as applied, and on the face of section 944.278,

add new consequences to acts committed before the effective date of the

statutes. Thus both provisions make Petitioner ineligible to serve a shorter

sentence for which he was previously eligible.

The effect of the retroactive legislation dramatically alters the prison

sentence to be served by the Petitioner. Petitioner has lost 420 days of

credits and the potential to earn additional credits each month that the

prison system remains at 98% capacity and for which he earns incentive

gain time. The effect of serving the increased time is additional punish-

ment retroactively applied to the Petitioner.

This Court has held that a retroactive decrease in the amount of gain time

Florida inmates could earn was in violation of the Ex Post Facto Clause.

Weaver v. Graham, 450 U.S. 24, (1981). Because Weaver and like inmates

would serve a longer sentence under the retroactive application of the

gain time statute, this Court found that the gain time scheme was a

determinant of the sentence length. Id. Thus the petitioner was retroac-

tively disadvantaged by the new scheme and the law was struck down as

ex post facto.

The issue of retroactive ineligibility for overcrowding credits has been

previously ruled on by the Tenth Circuit in Arnold v. Cody, 951 F.2d 280

(10th Cir. 1991).

The facts of Arnold are virtually identical to the facts presented in the

instant case. In that case the Tenth Circuit ruled that amendments to the

Oklahoma Prison Overcrowding Emergency Powers Act, Okla Stat. tit.

57 §§ 570-576 as applied, violated the ex post facto clause by making that

petitioner retroactively ineligible for overcrowding credits. Arnold v.

Cody, 951 F.2d 280, 281 (10th Cir. 1991).

The Arnold courtrelied on the judicial authority of Weaver v. Graham, supra,

and applied the factors that are listed in that case. Arnold at 281. The Tenth

Circuit held that the amendment to the statute met both requirements. Id.

at 283. The amendment applied retroactively and the effect of the addi-

tional eligibility requirement was disadvantageous to that petitioner. Id.

The amendment foreclosed the possibility of a shortened prison stay,

which the petitioner was entitled to under the law in effect at the time he

committed the offense. Id. The fact that the statute was enacted to

alleviate overcrowding was not found to be significant. Id.

The Supreme Court of Florida has also recently ruled on this issue, in a

pro se case. Griffin v. Singletary, 638 So. 2d 500 (Fla. 1994). However, the

outcome of that case is contra to the law as applied in Arnold. In Griffin

the Florida court found that the application of section 944.277 (1992) was

not an unconstitutional violation of the ex post facto clause. This ruling is

in error and requires review by this Court.

Although the Griffin court correctly cites Weaver as the controlling law it

fails to apply the test clearly set out in Weaver. Griffin v. Singletary, 638 So.

2d 500 (Fla. 1994). Instead of analyzing whether the law was applied

retrospectively and whether its effects disadvantaged the petitioner, the

Florida court relies on irrelevant factors which this Court and other

federal courts have ruled to be impermissible considerations in an ex post

facto analysis. |

In Griffin that court includes findings that administrative and provisional

credits are not subject to the ex post facto prohibitions because the credits

are “not a reasonable quantifiable expectation at the time the inmate is

sentenced”. Id. at 501. Additionally, that court holds in Griffin that

provisional credits are an “inherently arbitrary and unpredictable possi-

bility that is awarded based solely on the happenstance of prison over-

crowding”. Id. However the Weaver factors are not applied to the facts

in Griffin.

Additionally, the Griffin opinion incorrectly relies on the predictability of

an award of overcrowding credits. Inan Eleventh Circuit case, that court

stated that it is not the duty of the court to speculate on the possibility of

the award of gain time but merely determine whether there is an

opportunity to shorten the time spent in prison. Raske v. Martinez, 876 F.2d

1496, 1500 (11th Cir. 1989), cert. denied, 493 U.S. 993, 110S. Ct. 543, 107 L.

Ed. 2d 540 (1989) (emphasis added).

The law at issue created such an opportunity. The prison system in

Florida has been historically overcrowded. e.g. Costello v. Waignwright,

397 F. Supp. 20 (M.D. Fla 1975), rev'd 430 U.S. 325 (1977). The Legislature

created the overcrowding credit statutes to alleviate the overcrowding.

Not only was there an opportunity to earn credits, credits were awarded

to eligible inmates over a period of years. Additionally, those entering

into plea bargains were aware of the awards of overcrowding credits and

took this into consideration when making their decisions to plead guilty

ornocontest. Like the Petitioner, these inmates were aware that the prison

system was overcrowded and that this was the method DOC had

employed to alleviate that problem. The overcrowding credit statute in

effect at the time Petitioner entered a change of plea and was sentenced,

gave him a clear opportunity to shorten his time spent in prison.

The Griffin decision also relies on the assertion that the overcrowding

credits were inno way part of the original sentence. Griffin at501. This has

been held to be a non-determinative inquiry. Weaver v. Graham, 450 U.S.

24, 101 S. Ct. 960, 67 L. Ed. 2d 17 (1981). This Court in Weaver held that it

need not determine that the prospect of gain time is a part of the sentence,

it must only be a determinant of the prison term and because of the

retroactivity of the law the sentence to be served has been lengthened.

Weaver at 32, 101 S. Ct. 960, 67 L. Ed. 2d 17.

The Griffin opinion does not analyze the effects of the law which place

section 944.277 Florida Statutes (Supp. 1992) and section 944.278 Florida

Statutes (1993) in violation of the ex post facto prohibitions. Instead the

opinion is based on a new analysis of possibilities and likelihoods of an

award of overcrowding credits.

The Arnold case is correctly decided and accurately states the law found

in Weaver and other federal cases. The opinion of the Florida Supreme

Courtis indirect conflict with the Tenth Circuit and fails to properly apply

the applicable federal law. The law set out in Griffin which was the basis

for the Florida Supreme Court's denial of the Petitioner’s Writ of Habeas

Corpus requires the review of this Court.

This Court should grant certiorari in order to settle the conflict of law

between the Tenth Circuit and the highest court of the State of Florida and

also to protect a fundamental federal right.

10

2. Question 2 above stated: Whether the retroactive application of

the exclusions from eligibility for provisional release credits in Section

944.277 (1) (i), Florida Statutes (Supp. 1992) and Section 944.278 Florida

Statutes (1993), is an unconstitutional violation of the prohibition

against bill of attainder contained in Article I, Section 10, of the United

States Constitution.

This past term this Court once again identified Bills of Attainder as

examples of prohibited retroactive legislation. Landgraf v. USI Film

Products, 1145. Ct. 1483, 1497 (1994). This Court should grant certiorari in

this case and uphold that principle of law in order ensure a basic federal

right.

The United States Constitution provides that “[n]Jo state shall...pass any

Bill of Attainder...”A legislative act is a bill of attainder if it: (1) inflicts

punishment, (2) against identifiable individuals, (3) without judicial trial.

Selective Services System v. Minnesota Public Interest Research Group, 468

U.S. 841, 846-847 (1984). The cancellation of Petitioner’s provisional

credits by retroactive application of section 944.277 Florida Statutes

(Supp. 1992) and section 944.278 Florida Statutes (1993) is punishment by

an increase of prison terms against individuals, like Petitioner, who were

already incarcerated, without judicial trial.

This Court has ruled that an act is punishment under the jurisprudence

of bill of attainder if it either: (1) falls within the historical category of

punishment, (2) functionally furthers no non-punitive legislative pur-

poses, or (3) the legislative history shows a motivational intent to punish.

Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 473-484 (1977).

Increase in prison term through cancellation of provisional credits falls

under the first test as a historical category punishment. Weaver v. Graham,

450 U.S. 24, 29 (1981).

The retroactive cancellation of provisional credits section 944.277 Florida

Statutes is directed against only the identifiable individuals consisting of

11

Department of Corrections inmates who fell within one of the amended

categories of exceptions. The cancellation of credits through section

944.278 Florida Statutes was directed at the identifiable group of all

Department of Corrections inmates.

Both the Attorney General’s 1992 opinion interpreting section 944.277,

Florida Statutes (1991) and the passage of section 944.278 Florida Statutes

(1993) were initiated in response to the current unpopularity of the early

release programs. Attorney General Opinion 92-96 was released in

response to the public outrage over the pending release of a notorious

criminal, Donald McDougall. Op. Att’y Gen. Fla. 92-96 at 283 (1992). See

also, Roger Handberg and N. Gary Holten, Reforming Florida's Sentencing

Guidelines 82 (1993) (discussing political response to McDougall contro-

versy); Barbara Walsh, Inmates Identify A Secret State Rounding Up Wrongly

Released, Sun-Sentinel, January 15, 1993, at 1B (quoting Attorney General

Butterworth: “The McDougall case woke everybody up. Society has no

use for violent offenders.”)

Section 944.278 Florida Statutes (1993) was passed shortly after the

McDougall incident in response to public outcry against early release of

prisoners. Roger Handberg and N. Gary Holten, Reforming Florida’s

Sentencing Guidelines 82 (1993).

Finally, the statutes at issue retroactively changed eligibility for provi-

sional credits and retroactively canceled all provisional credits already

awarded causing an increase in prison term without the benefit of a

judicial trial.

The Florida Supreme Court's denial of the Petitioner’s Writ of Habeas

Corpus was in error and requires review from this Court to preserve an

important federal right.

12

3. Question 3 above stated: Whether Section 944.277 (1) (i),

Florida Statutes (Supp. 1992) and Section 944.278 (1993), which de-

stroyed Petitioner's liberty interests in granted provisional credits,

destroyed his liberty interest in release on his provisional release date,

and destroyed his property interests in the procedures for revocation

of his liberty interest, on its face or as applied to the Petitioner deprives

the Petitioner of liberty and property without fair notice and procedure

in violation of the Fourteenth Amendment to the United States Consti-

tution.

This Court should grant certiorari to ensure the fundamental right of

constitutional due process.

The Fourteenth Amendment, U.S. Const. amend. XIV, section 1, pre-

cludes arbitrary deprivations of liberty and property interests and man-

dates that any deprivation of those interests to be accomplished only

through fair, federally prescribed procedure. See,e.g., Loganv. Zimmerman

Brush Co.,455 U.S.422, 428-31 (1982); Wolffv. McDonnell, 418 U.S. 539, 555-

58 (1974); Gagnon v. Scarpelli, 411 U.S. 778, 781-82 (1973).

This Court has held that a liberty interest may arise from two sources, the

Due Process Clause and the laws created by a state. Kentucky Dept. of

Corrections v. Thompson, 490 U.S. 454, 460 (1988), Wolffv. McDonnell, 418

U.S.539,557 (1973). Astate creates a protected interest when the language

of the provision provides “substantive predicates” to guide the officials’

discretion. Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 460

(1988).

Said language must contain mandatory language giving directives to

guide the acts of the official once the “substantive predicate” has been

met. Id.

The statutes and rules at issue in this case contain the necessary manda-

tory language which require a substantive predicate and mandate a

certain outcome. Chapter 944, Florida Statutes provides that when the

13

prison population reaches a certain capacity the Secretary of the Depart-

ment of Corrections has the authority to award provisional credits.

Section 944.277(1). Once the decision to award credits is made the

Secretary must award credits to each eligible inmate who is incarcerated

on the date of the award and who is earning incentive gain time. That

section also mandates that a provisional release date be established for

each inmate. Section 944. 277(4) Fla. Stat. (Supp. 1988 - Supp. 1992). Any

inmate who has received thirty or more days of provisional credits “must

be released” on his or her provisional release date. Section 944.277(5) Fla.

Stat. (Supp. 1988 - Supp. 1992).

The Department of Corrections administrative rules echo the mandates

found in the Florida statutes. Sections 33-28.0019(1),33-28.002, Fla. Admin.

C. (1992).

The nature of provisional credits do not differ in any substantial way from

the other types of gain time in which this Court has found a liberty or

property interest deserving of due process protection. Although the main

task of the provisional credits system was to alleviate prison overcrowd-

ing, the effort put forth by the inmate to obtain the provisional credits and

the effect of the award of credits to the inmate are identical to that of

incentive gain time.

In order to earn provisional credits the inmate must also qualify for

incentive gain time. Section 944.277 Fla. Stat. (Supp. 1988 - Supp. 1992).

Thus it is pivotal that the inmate be on his or her best behavior and that

he or she attempt to participate in work or educational programs as they

become available. Once credits were awarded, the inmate received a new

provisional release date giving him or her an earlier date for release from

incarceration. Effectively the Petitioner and other inmates like him

demonstrated good behavior and were rewarded for that behavior with

a shortened sentence.

The language used by the legislature and the Department of Corrections

in these statutes and agency rules create a presumption that credits will

14

be awarded and inmates will be released when certain conditions exist.

By employing such language the State has created a liberty interest in the

provisional release credits. Kentucky Department of Corrections of Correc-

tions v. Thompson, 490 U.S. 454, 460 (1988).

This Court has held directly on point, that “where a prisoner has a liberty

interest in good time credits, the loss of such credits threatens his

prospective freedom from confinement by extending the length on

imprisonment. Thus the inmate has a strong interest in assuring that the

loss of good time credits is not imposed arbitrarily.” Superintendent, Mass.

Correctional Inst., Walpole v. Hill, 472 U.S. 445, 454 (1985).

Once a liberty or property interest is created by the State that interest may

be revoked only through constitutional notice, opportunity to be heard

and written justification. Wolff v. McDonnell, 418 U.S. 539, 563-67 (1973).

In violation of the procedural due process clause of the United States

Constitution, the Petitioner was afforded no notice, opportunity to be

heard or written justification for the acts taken. The Respondent's

summary cancellation of those credits was an erroneous and arbitrary act

which the due process clause protects against.

This Court should grant certiorari to uphold the Petitioner's federal right

under the Due Process Clause of the United States Constitution and to decide

a question of great public importance.

15

CONCLUSION

This Court should issue the Writ for review of the questions

presented above.

John D. Middleton, Esq.

Route 3, Box 3050

Melrose, Florida 32666

(904) 475-1357

Counsel of record for Petitioner.

~

16

INDEX TO APPENDIX

Decision of the Florida Supreme Court

ON I IS eiirirsccissicinnncnreecisnrtninniecsereenneniitinicntainiosmuliieni

a

SUPREME COURT OF FLORIDA

Thursday, September 15, 1994

RUSSELL CALAMIA,

Petitioner,

Vv. CASE NO. 84,088

HARRY K. SINGLETARY, JR.,

ETC,. '

Respondent.

/

The Petitioner in the above cause has filed a Petition for Writ of

Habeas Corpus, and the same having been duly considered, it is ordered

that said Petition be and the same is hereby ordered denied.

GRIMES, C.J., OVERTON, SHAW,

HARDING and WELLS, JJ., concur