FLORIDA ,PRISON LEGAL

ers e:ctives
,

ISSN# 1091-8094 .

VOLUME 14 ISSUE 6

Economic Downturn Means
More Business for Privat~
Prisons
rivate prison companies are getting ready to cash in as
the current economic repression is making it harder
for the federal government and states to afford to build
and operate even 'more prisons andjails as the' number of
. incarcerated continues to grow.
..
In recent months, the Federal Bureau of Prisons and
several states have sent thousands of prisoners to detention
.centers an~ prisons run by Corrections Corporation of.
America (CCA), GEO Group, Inc. and other private
corrections companies, as more people are detained for
illegal immigration and mandatory sentences have been
lengthened for certain crimes and other f~ctors have led to
overcrowding in many government facilities.
As of mi,d-2007, private prisons housed 7.4 percent of
the country's 1.59 million incarcerated adults, up from
1.57 million in 2006, according to the Bureau of JiJstice
Statistics, the statistical department of the U.S. Dept. of
)ustice. And prison-policy experts expect prisoner
populations to increase by 25 percent or more, in I0 stat~s
.that were surveyed, between 2006 and 20 II, according to
a report by the nonprofit Pew Charitable Trust..'
CCA, the largest private prison company in the United
States, with 64 facilities, built two prisons this. past year
and expanded nine existing facilities, and the company is
scheduled to finish building two more: prisons in 2009.

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ON

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THE

INSIDE
11.--1

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NOV/DEC 2008

During.its third quarter of 2008 CCA put 1,680 new
prison beds to use, helping to boost net incpme 14 percent
to $37.9 million. "There is going to be a larger.opportunity
for us in the future," said Damon Hininger, 'CCA's
. presiden~ and chief operating officer.
California has shipped over 5,000 prisoners to private
prisons run by CCA in Arizona, Mississippi and other
state's since late 20Q6,;when Gov. Schwarzenegger ordered
emergency measures. Prisons were s,o overcrowded· th~t
hundreds of prisonets were sleeping in gyms, according to
. one report. An additional 2,900 prisoners are scheduled to
be transferred to private prisons outside the state by the
end of2009, according to the CA DOC.
GEO Group,. based in Boca Raton, Florida, the second
largest private prison company, built or expanded eight
facilities' in. Georgia, Texas, Mississippi and 'otherstates
during 2008. And it plans seven more expansions or new
prisons by..20 IO. GEO waS recently awarded a contract by
Florida's Department of Management SerVices to design
. and build a special-needs prison in NW Florida (See this
issue of FPLP, pg. 3). GEO had already opened a new
private. prison, Gra~eville Corrp:tional Facility, near the '
same area in Florida in 2007.
.
Since 1997, the Federal Bureau of Prisons, ·has
awarded 13 contracts to private prison companies to build
prisons and detention centers that .house low-security.
prisoners, primarily "low-security criminal aliens," said
Felicia Ponce, a spokeswoman for the BOP...
Proponents of private prisons claim that outsourcing
incarceration to private prisons can reduce gcwemment's

Writ Writing 101
Post Conviction Comer
;
:
Mail from Readers
News in Brief
~ :
Appeal ProcesslCOAs in Habeas CorPUs
Map ofFDOC Correctioilal Facilities

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. Florida Prison Legal Perspectives

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Private prison companies say they can build prisons more
quickly and operate them less expensively than
governments, because their payroll costs are lower and
they can' consolidate prisoners from many jurisdictions
into facilities' located in areas where land and building
costs are low.
.
Opponents and tritics of private prisons accuse them cjf
neglectiqg' prisoners and putting them in bad conditions.
"Profit is still a m'otive and it's structured into the way
these prisons are operated," says Judy Greene, a justicepolicy analyst for Justice Strategies, a nonprofit studying
prison-sentencing issues and problems. "Just because the
.system has expanded doesn't mean there is evidence that
. conditions have improved," /iaid Greene.
"We have serious concerns about for-profit prisoh
companies because, they are notorious for cutting essential
costs that need to be provided to maintain a safe and
constitutio.nal environmerit for prisoners." says Jady Kent,
a public:'policy coordinator for the American Civil
.' Liberties Union National Prison Project.
Private prison companies' optimism that their
businesses will find a boom in these~onomic times of
dire straits is probably not misplaced. Cash-strapped stat~s
are going to be looking at all ways to reduce costs, .
including those for incarceration. As incarceration
continues to grow, and other sectors of business feel the
crunch of the repression, private prison operators and their
shareholders will be smiling all the way to the bank. They
finally figured out how-to make crime pay legally.'Their
business' opportunities are Limitless as long, as the U.S.
continues tei incarcerate. more of its own citizens-than any
other COUDtry in the, world..

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Florida.Prison Legal Perspectives

New Private Prison for
North Florida

A

privately owned prison that will house Florida state
prisoners is going to be built right near 1-10 close to
Milton, which is located in Santa Rosa County. The prison
will be built by the Boca Raton-based GEO. Group, a
private prison profiteer company, and will cost $120
million.
Cloid Shuler, vice president of business development
for GEO. said construction of the prison should begin by
March 'o?> and will take about 18 months to complete.
Touting the economic benefits to the local community,
who might otherwise have objected to another prison
being built in their county, Shuler announced at a news
conference held in Milton in late October that the prison
will be built and run almost exclusively by local people.
Shuler said the average salary for employees at the
prison will be over $37,000 a year, about I.S ,percent
above average Santa, Rosa County salaries. It is projected
that about 400 people will be employed at the prison,.
including doctors, teachers, counselors and about 200
prison guards, among otherS. "The only people we will
bring in are people like myself who make their living
running prisons," said Shuler.
The prison will house 2,000 medium-and closecustody male prisoners, with chronic medical and mentalhealth 'problems. The new facility will be located just
down the road from the state-run Santa Rosa Correctional
Institution, which reportedly is one of the worst operated.
and most abusive prisons in the state.
Gretl Plessinger, public information officer for the
FDOC, said that state agency will provide oversight of the
new private prison once it is complete.
The new prison will help alleviate the pressure from
the state's growing prison population, which now is at
almost 99~000 prison~rs, Plessinger said. "Our inmate
population is growing. As the population continues to
grow, we are looking,at building more prisons."
[Source: Pensacola News Journal] _

Public Defenders Crisis

P

ublic defenders across the country say that budge cuts
are forcing them' to refuse cases because that may not
be able to effectively handle the growing caseloads.
At present. Florida. Kentucky, and Missouri have taken
the first stand, with a half dozen other states considering
challenging their growing caseloads in' court. "Many
public defenders are f~eling the squeeze at this point," said
Maureen Dimino with the National Association of
, Criminal Defe'1se Lawyers.
.

Bennett Brummer, Miami-Dade County Public
Defender, filed a lawsuit against, the State of Florida in
June this year after the Legislature cut his budget 9%.
Brummer argued th.at his lawyers, who each handle
around 436 cases a year, could not take any· new felony
cases .without being in danger of committing malpra~tice.
A Judge ruled that starting last September IS, Brummer
can send, his least serious felony cases to the state, which
wil! ha~e to provide attorneys or pay for private lawyers
for insolvent defendants.
'
The Miami judge's ruling, which will impact thousands
of felony cases,. "will have state wide and some
nationwide impact," said Brummer. He also added that
"Many defenders would like to take meaningful steps to
alleviate their caseload".
, . The state attorney's office is appealing the ruling
claiming that Brummer is exaggerating the caseload. A
spokesman for the Miami-Dade County state attorney's
office, Ed Griffith, says that the public defenders are
compromising victim's rights by withdrawing.
Griffith also stated that if defendants do not get trials
within ,a set amount of time, judges are obligated to
'
release them to the detriment of all the citizens.
SimillJrly, .Kentucky's former public advocate, Ernie
Lewis, has petitioned a judge to declare his offiCe under
funded in order to refuse misdemeanor cases.
.
Lewis states that budget cuts forced him to leave nearly
100 positions open and that his attorneys' caseldads could
add up to SOO each this year. "It's very clear to me that our
caseload would be unethical, said Lewis.
According to. tlie Am~rican Bar Association, a pubic
defender can competently handle I SO to 200 caseloads a
.year.
'
In a similar manner, last September Missouri public
defender's office notified the courts in two jurisdictions
that it will reject new cases there. The two jurisdictions
were Ava and Jefferson City.
.
The state created a new rule that limits the number of
cases that each attorney will handle and public defcmders
exceeded that limit.
. Cathy Kelly, deputy director for the Missouri State
Public Defender .System said, "Our lawyers have an
ethical responsibility to not take on more cases than they
can handle." She added that, "We just feel like we have
reached the point where we have to say no."
The growing caseloads could force states to either
spend more money on. public defenders, delay trials or
cause ,many cases to be overturned on appeal due to the
'
ineffective assistance of trial lawyers: _

_ . . . . . . . *_.------.;..3

Florida Prison Legal Penpedives .

• Writ Writing 101 •
FDOC Grievance Procedure
by Melvin Perez

I

n the last decade or so writ writing has become a
. foreign concept for most prisoners in the FDOC. This
may be in part because of the young generation flooding
the prison system or the retaliation writ writers suffer by
DOC. Prison officials in Florida call writ writers prisoners
that file grievances against DOC. In other parts of the
country a writ writer refers to ajailhouse lawyer.
In the past, DOC officials have retaliated against this
distinguished class of prisoners in the form of placement
in segregation', units, on false misconduct charges,
depriving them of proper food by either placing them on
loaf (and unappetizing substance made by mixing various
foods and baking the mixture) or not providing them any
food and hygiene materials. transferring them to a more
punitive prison, and interfering with their legal documents
and mail.
Further, some have been beaten, placed on strip status
(practice involving removal of all property including
clothing" bedding and writing materials until the prisoner
earns it back), forced to sleep on a steel bunk at cold
temperatures. applied chemical agen~ for no reason, and
even killed by DOC guards.
DOC has not hesitated in its effort to stop these
prisoners to the point that. writ writers have become an
endangered species.
.
r
Many DOC officials believe that these prisoners fiJe
grievances because they have time on their hands and
enjoy harassing' the administration. However, DOC
officials ignore the truth that these prisoners file a lot of
grievances because they are subjected to a lot of abuse and
unjust treatment. Moreover, that these prisoners have a
constitutional. right to file griev~ces.
Constitutional Rigbt
The US Supreme Court has made clear that convicted
prisoners do not forrelt all constitutional protections by'
reason of their 'conviction and confinement in prison. See:
Bell v. WolfISh, 441 U.S. 520. 545 (1979).
Again. the high court reiterated its position when it
held that prison walls do riot separate prisoners form their
constitutional rights in Turner v. Safley, 482 U.S. 78
, (1987). See also, WolJfv. McDonnell, 418 U.S. 539, 555-56 (1974X"Thei'e is no iron curtain drawn between the
Constitution and the prisons of this country.").
Further, prisoners clearly retain protections afforded by
the First Amendment. See: Pell v. Procunier, 417 U.S.
817, 822 (1974) and G/ano v. Senkowski, 54 F~3d 1050,
1053 (2nd Cir. 1995) ("A prison inmate... retains those
First Amendment rights that are not inconsistent with his
status as a prisoner or with the legitimate penological
objectives of the corrections system.") (citations omitted)
4

1

The First Amendment also prohibits jail and prison
officials from retaliating against prisoners who report
complaints. file grievances, or file lawsuits. See: Allah v.
Seiver/lng, 229 F.3d 220, 224 (3 rd Cir. 2000); Babcock v.
White, 102 F.3d 267,275 (7th Cir. 1996); and Williams y.
DOC, 208 F.3d 681. 682 (8th Cir. 2000). See also,
Crawford-E/ V. Britton, 523 U.S. 574, 588 n. 10 (1998)
(statjng that "[t]he reas~n why... retaliation offendS the
·Constitution is that it threatens to inhibit exercise of the
protected right").
In addition, retaliation against prisoner for pursuing
grievance violates right to petition government fo/redress
of 'grievances guaranteed by First and Fourteenth
Amendments and is actionable under § 1983. See: Gayle
V. Lucas, 133 F. Supp. 2d 266, (S.D. N.Y. 2001) and
Bridges v. Russell, 757 F.2d 1155 (11 th Cir. 1985).
Filing a grievance is protected activity. See: Mora/es v.
Macka/m, 278 F3d 126 (2nd Cir. 2002) and Graham v.
Henderson, 89 F.3d 75, 80 (2nd Cir. 1996) ("[Plaintiffs]
filing of a grievance and attempt to find inmates to
,
represent the grievant is constitutionally protected...")
Similarly, a prisoner has a right not to be subjected to
bogus disciplinary reports in tetaliation for his exercise of
a constitutional right. See: Nunez V. Goord, 172 F.Supp.
2d 417 (S.D.N:V. 2001) and Hines v. Gomez, 108 F3d
265, 269 (9th Cir. 1997) (finding that filing false charges
against a prisoner infringes on. the prisoner's "First
Amendment right to file prison grievances.") ,
Althou,gh the filing of a false disciplinary charge is not
itself actionable under § 1983, the filing of a disciplinary
charge becomes actionable if done in retaliation for the
prisoner's filing of a grievance. See: Dixon v. Brown, 39
F.3d 379 (8 th Cir. 1994)..
.
Moreover, a prisoner can establish retaliation by
demonstrating that the prison official's actions were the
result of having 'filed a grievance cQnceming. the
conditions of his or her imprisonment. See: Wi/derger V.
Brackne//, 869 F.2d 1467, 1468,(11 th Cir. 1989) and Gill
v. Mooney, 824 F.2d 192, 194 (2~ Cir. 1987).
Likewise, the First Amendment insulates from
retaliation a prisoner who engages in a protected activity
on behalf .of other prisoners. See:. Adams v. James. 784
F.2d 1077, 1081 (11 th Cir. 1986) and Au/eta V. LaFrance,
233 F.·Supp. 2d 396 (N.D.N.Y. 2002).

Grievance Procedure
The FDOC prisoner griev'ance procedure is found in
Chapter 33-103 Florida Administrative Code (hereinafter
F.A.C.) Rule 33·103.001(1) provides that the purpose of
the grievance procedure is to provide a prisoner with a
channel for the administrative settlement of a grievance.
In addition to providing, the' prisoner with the
opportunity of having a grievance heard and considered.
this procedure will assist the departmenr by providing
additional means for internal resOlution of problems and
improving lines of communication. This procedure will ,

Florida ~rison Legal Perspectives
also provide a written record in the event of subsequent
.
judicial or administrative review. /d.·
While. many prisoners have used the grievance
procedure and may con'sider it useless, a properly fiJed
grievance can get DOC officials' attention and. resolve an
issue withqut any need for litigation.
Additionally, reviewing word usage 'and grammar
before filing your grievance. will' help' you write your
grievance clearly, correctly, and interestingly.
Other tips that will help you properly file a grievance .
include: 1) rewriting your grievance; 2) using .concise
. language; 3) reviewing it to refine the language and
grammar; and, 4) reviewing the grievance procedure.
These factors will make your grievance look more
professional and staff may want to review your grievance
more carefully.
"
Not to say that DOC staff really C~lfes about your
grievance. How~ver, y'our ability to properly present,your
wievance may make staff think again and properly review
your claim. It is better for DOC staff. to, do this than find
themselves defending a lawsuit later.
.
.
Also, k~owing how to properly fife a grievance is
important since a prisoner is required to exhaust
administrative remedies .before seeking judicial review 1n
most civil actions.
Each ~rlsoner shall be entitled to invoke the grievance
procedure .regardless of any disciplinary, classification or .
other administrative action or legislative decision to which
the prisoner may be subject. See Rule 33-103.001(2).
Each, institution. shall ensure that the grievance
mechanism is accessible to ,prisoners who have
disabilitIes. This may be accomplished .by providing
assistance through the institution library ifrequested./d
While many prison law, clerks refuse to' help other
prisoners with grievances and litigation against DOC,
assisting pri!!oners in this area is certainly part of their job.
See: F.A.C., 33-501. 301(7)(c) and 33-501.301(2)0>.
The following is a list of issues' that prisoners may
grieve:
•

•

•

•
•

The substance, interpretation, and application .of
rules and procedures of the department that affect
them personally;
The interpretation and application of state and
federal laws and regulations that affe.ct them
personally;
"
Reprisals against prisoners for filing a complaint
or appeal under the prisoner grievance procedure,
or for participating in' a. prisoner grievance
proceeding;
Incidents occurring within the 'institution that
affect them personally; and,
Conditions of care or supervision within the
authority of the FDOe. See: 33-103.001(3)(a)-(e).

This section also provides a list of issues that prisoners
cannot grieve. These are the following:
•
•
•
•

The substance of state and federal court decisions~
The substance· of state and federal laws and
regulations
,
Parole decisions; a n d , .
Other matters beyond the control· of the
department. See: RUle·33~103.001(4)(a}(d).

The Informal Grievance Step·
Prisoners are required to use the informal
grievance step befo,re filing a formal grievance. The
only exceptions to this rule are when the grievance
categories:
,falls under one of the following
,
1) An emergency grievance;
2) A 'grievance of reprisal;
3) A grievance of a sensitive nature;
4) A grievance alleging violatio'n of the Americans
with Disabilities Act;
5) A medical grievance; .
'.
.
6) A grievance involving admissible reading material;
7) A ·grievance involving gain time governed by Rule
33-601.101;
8) A g..ievanc~ challenging placement in cl~se
management and subsequent reviews;
9) Grievances regarding the return of incoming mail
governed by subsection 33-2JO.IOJ(l4); and
10) A grievance involving disciplinary reports. See:
Rule 33-103.005(1).
These grievances may be sent in a sealed envelope
through routine institutional mail channels. See: 33103.006(3). If the grievance does not fall within the
above categories, the prisoner must file an informal .
grievance.
Filing The Informal Grievagce
The first step in the grievance process is ~ file 'an
informal grievance. An informal grievance shall be
submitted to the designated staff by personally placing
the informal grievance 'in a locked grievance box.
Locked boxes shall be available to prisoners in open
population and special housing units. See: 33.103.005(IXa).
Informal grievanCes' must be ' filed within" a
reasonable time of when the incident or action being
grieved occurred. Reasonableness shall be determined
on a ca~e-by-case basis. Availability of witnesses· and
relevant documentary evidence are factors. among
olbers, which should be looked at in determining'
reasonableness. See: Rule 33-J03.011(1)(a).
When submitting the informal grievance. the
prisoner shall use form DC6-236. Inmate Request

5

Florida Prison Legal Perspectives '
The prisoner must cheek the appropriate box
indicating to whom he or' she is submitting the
informal grievance. If the prisoner ,checks the box
designated "other" he or she shall print the name or
title ot the person the form is going to in the space
underneath the box. and complete the other sections of
the heading. See: 33-103.0QS(2)(a).
,
Inaddition, on topof the page, on the first line of
the word "Request," or on the first line of the request
section,' the prisoner shall print the words "Informal
Grievance."Failure to do this will cause the request to
be handled routinely and it will not be considered an
informal grievance. See:'33-103.005(2)(b).
Likewise, this will also cause the form to be
unacceptable as documentation of having met the
informal step if it is attached to a formal grievance
.
submitted at the next step. [d.
Prisoners cannot asJ< qu.estions, seek information,
guidanc~ or assistance in their grievance or it will be
,considered a request and not an informal grievanc~.
See: 33-I03.005(2)(b)(I).
"
,
Further, section (2)(b)(2) states that "When
completing the inmate req~estform for submission as
an informal grievance, the'inmate shall ensure that the
form is legible, that, included facts are accurately
stated, and that only one issue or complaint is
addressed. If additional space is needed, the ,inmate
shall use auachments and not multiple copies of Form
DC6-236>" Attachments that are a continuation of the
grievance statement do not need, to be submitted in
. triplicate. DOC eliminated this requi'rement on March
25,2008.
, '
..
However, a prisoner may want to include other
attachments to support his 'or her claim. In that ease
the prisoner should make copies of such attachments
by following the procedure set forth in, 33501.302(3)(a), F.A.C.and Procedure 591.302(15).
The prisoner shall sign and date the form and write
in his or her DOC number and forward the informal
grievance to the designated staff ,person. If the
prisoner fails to sign the grievance, it shall result in a
delay in addressing the grievance until it can be
verified that it is that prisoner's grievance. See: 33,I 03.005(2)(b)(2).
" Thereafter, '33~103.005(4) provides t~at "The
recipient shall respond to the inmate following'
investigation and evaluation of the complaint within
, , 10 days......
" Furthermore, "The recipient'shall state that the
grievance is approved, denied, or returned without
action. The respon~e shall also state the reason or
reasons for die approval, denial" or return." See: 33l03.00S(4)(b).
'
The response to the informal grievance shall
include the following statement, or one similar in
content and intent ifthe grievance is denied: You may

6

obtain further administrative review of your complaint
DCl-303 Request for
by obtaining form
Administrative Remedy. or Appeal, completing the
fClrm as required" by Rille 33-103.006, F.A.C.,
attaching a copy of your informal grievance and
response, and forwarding your complaint to the
warden or assistant warden. See:33-103.0~S(4)(d).
The Formal Grievance
A formal grievance being filed at the institution
must be submitted no later than 15 calendar days
from: 1j The date on which the informal grievance
was responded to; or 2) the date on which the incident
or action being grieved occurred if an informal
grievance was not filed pursuan~ to the circumstances
specified in sub-section ~3-103.006(3). See: 33-'
103.011(1)(b)..
.
The prisoner shall state his or her grievance in Pan
A: If additional space is needed, the prisener shall use
attachments and not multiple copies of Form DCI303. If the prisoner writes his or her complaint
anywhere other than within the boundaries of Part A
or on attachments, the grievance shall be returned for
n,pn-compliance. See: 33-f03.006(2)(c).
Sometimes these grievances are not returned
, because staff answering grievances do not know the
rules. 'However, do not take the chimce; follow the
rules.
The same requirements of the informat grievance
apply here as to being legible, the facts accurately'
stated, addressing 'only one issue, and attachments,
except as' not~d hereunder. The prisoner shall sign,
.date, write his or, her DC number, and address the,
grievance to the warden or Asst. warden.
,When the, formal grievance at the institution is, a
disciplinary report (h~reinafter DR) appeal, the
prisoner should be allowed to raise more than one
issue. However, there is no rule that addresses this
issue in 33-103, F.A.C. ~nd different institutions have"
different policies when it comes to this issut;. Some
institutions anow you to raise more than one issue,
others do not. But central office is ~ore likely to agree
that on a DR grievance more than <rme issue may be
raised.
The prisoner, shall also, attach a copy of the
informal grievance and the response to the informal
grievance to the DC 1-303 form, unless the grievance
is a direct formal grievance,' as previously discussed.
A computer generated receipt or Part C, receipt
section of the grievance, shall be completed and
retum'ed to the prisoner. See: 33-103.006(S)(b).
If the formal grievance is a direct grievance the
prisoner shall clearly state the reasons for by-passing
the inform~1 grievance st~p and shall state at the
beginning of Part A the subject of the grievance.
Failure to do so and failure to justify filing directly

Florida Prison Legal PerspectiveS
shall result in the formal grievance being returned
without action to the prisoner with the reasons for the
return specified. See: 33~103.006(4).
On the other hand, if the prisoner is filing an
amendment to a previously filed grievance or appeal,
the prisoner hall clearly state this at the beginning of
Part A. Amendments are to be filed only regarding
issues unknown or unavailable to the prisoner at the
time of filing the original, grievance and must be
submitted within a reasonable time frame of
knowledge of the new information. See: 33-'
.
103.006(2)(i).
'
Issues appealed should raise any counter arguments
to the responses received and address any claim
overlooked or sidestepped by the respondent.
Rule 33-103.011(3}(b) provides that following
investigation and evaluation by the. reviewing
authority, a response shall be provided to the prisoner
within 20 calendar days of receipt ofthe grievance.
If no response is received within that time, a
prisoner may go to the next step of the grievance
process. This applies to any grievance filed at any
level. If this occurs, the prisoner must clearly indicate
this fact when' filing at the, next step and also state that
no extension was agreed to by the prisoner. See: Rule
33-103.011(4).
The response to the. formal grievance shall include
the following statement, or one similarin content and
intent if the grievance is denied: Y qu may obtain
further administrative review of 'your complaint by
obtaining form DC]-303, Request for Administrative
Remedy or Appeal, completing the form, providing
attac~ments as .required. by paragraphs 33103.007(3}(a) and (b), F.A.C., and forwarding your
complainuo the Bureau ofInmate Grievance Appeals,
260 I Blair Stone Road, Tallahassee; Florida 323992500. See: 33-103.006(7).
.

Seeking Appeal to The Secretary
In the event that a prisoner feels that the grievance
has not been satisfactorily resolved during the formal
,grievance procedure, an appeal may be submitted
according to the time limits' set. forth in Rule 33103.0 II, F.A.C., using the Request for Administrative
Remedy or Appeal, Form DCI-303, to the office of
the secretaJ'Y, without interference from staff. See: 33103.007(1).
'
The prisoner has IS calendar days to file an appeal
to the office of the secretary', frQm the' date of the
deniaL The appeal must include a copy of the informal
grievance and response, also the copy and response of
the denial of the institutional grievance to the DC I303, Request for Administrative Remedy or Appeal (if
such were filed). The same requirements as to being
legible, the facts accurately stated and attachments
apply at this level. Also, all the other information must

be included ~ in the previous steps. and it must be
signed.
The appe~ should· argue the response received
. from the warden, any factors not addressed by the
respondent and any other issues that may be present.
The secretary has 30 calendar days from the date of
the receipt of the' griev~c~ to take action and respo~d
to appeals. See: 33-103.011(3X~).
]f the prisoner does not agree to an extension of
time at the central office level of review, he or she
shall be entitled to proceed with judicial remedies as
the prisoner would have exhausted his or her
administriuive remedies. See: 33-103.011(4) and Lane
v. Moore. 765 So.2d 777 (Fla. 1st DCA 2000).
The response s~all state w~ether the appeal or
direct grievance is approved, denied. or being returned'
and shall also state the reasons for the approval, denial
or return. See: 33-]03.007(4)(t).

Direct Grievances to The Secretary
The following grievances can be filed directly with
the secretary: I) Emergency grievances; 2) grievances
of reprisals; 3) grievances ofa sensitive nature; and 4)
grievances alleging a violation of the Health Insurance
Portability and Accountability Act. See: 33- ~
103.007(6)(a). Moreover, the prisoner can forward
these four types of grievances in a ,sealed envelope by
following the procedure in 33-1 03.006(8)(d}.
.
,
Key Points
,b
. '.. Ifthe Is day falls on a weekend or holiday
the due date shall be the next regu!ar day. See:
33-103.011(~). .
'
• The first DCA has ruled that the mailbox rule
,ppliesto grievances filed by prisoners. See:'
Gonzalez v. Slale, 604 So.2d &74 (Fla. 111
DCA 1992).
• If you do not argue any issue on your"
grievances, you may not try to raiSe them in
any judicial proceedings. See: Holland v.
Slale; 79J.So.2d 1256 (Fla. Sib DCA 2001).
• Follow all the rules in the grievance procedure
and make DOC·staff follow them also.
• ' Exercise your right to file grievances; it
makes a difference for every prisoner.
• Learn.how to.deal with retaliation.
• Staff found to be obstructing a prisoner's
access to, the grievance process shall be
subject to 'disciplinary action Tanging from
oral reprimand up to dismissal in accordance
with Rule$ 33-208.001-.Q03. F.A.C. See: 33103.017.
End Note

In writing this article, ] have tried to cover the areas
that, in my humble opinion, will be very useful to the

,

7

Florida PrisoD Legal Penpectives
Florida prisoner. However. fora full review of the FDOC
prisoner grievance procedure, See Chapter 33-103, F.A.C.
I,hope the information provi~ed in this article will help
the Florida prisoner bal~ce the injustice and abusive
treatment Florida prisoners are subjected toby some DOC
staff members. _
.

FDOC Wants More
Money
he secretary of the' Florida Department of Corrections
(FDOC), Walter McNeil, says' that some of the
department's top priorities are restoril'!g money cut from
prison education programs and probation officer budgets.
To obtain those 'goals the FDOC will be asking the
2009 Legislature for an ad9itional $286.8 million over and
above its current budget of2.2 billion.
McNeil says ~e understands there is a cash ,crunch, but
maintains that the additional money is' needed for
'successful prisoner, re-entry efforts and to maintain
adequate, effective offender supervision.
" A large part of theFDOC's request, $81 million, would
pay for the expected increase of prisoners' next' Fiscal
Year.•

T

McNeil said. The expanding-prison population could mean
there will nee<l to be 26 ne\y prisons over the next several
years at a cost ofabout $100 million each.
,
McNeil said about 88 percent of prisoners return to
their communities, but Florida has a 32.8 percent
recidivism rate. FDOC hopes to cut that rate in half over
the coming years.
\
'''We've got to do something different in prisons
t~roughout the 'state," McNeil said. "The worst crime
committed on society is someone who spends I0-15 years
in prison and then reoffends, with results not only in that
persOn's life but it also impacts that victim'~ life. We need
to deal with those inmates getting them pushed in the right
direction. Reception is the key."
"We are going to do great things in the Department of
, Corrections," s,aid McNeil. _

Mystery Involved in
Prison Guard KiUi'og

ccording to an investigation into the stabbing death
" of 'IJ female prison, guard on June 25, 2008, at
Tomoka Correctional Institution the guard wasn't wearing
a mandatory body alarm or caiTying a required radio when
she was killed. '
.,
Washington CI Becomes
Enoch Hall, 39 who was a prisoner at Tdmo~ CI, is
charged with first· degree murder of Officer Donna
Reception Center
Fitzgerald. Hall is already serving consecutive life
.
.
sentences in the 1993 kidnapping, beatin& and rape of a
ashington Co~ctional Institution, located in the
66-year-old Pensacola woman.
Florida Panhandle, was officially renamed
Fitzgerald was reportedly' supervising pr'isoners for
Northwest Florida Reception Center in a ceremony held
PRIDE Enterprises, a non-profit, company that runs work
Nov. 4, 2008.
.
programs in Flori~a's prisons, when she ~ attacked,and
The all-male prison is part ofthe FDOC:~ Region I that
stabbed to death by Hall.'
.
covers sixteen counties .in Northwest Florida with 22
Investigators claim to be baffled' as to why Fitzgerald
prisons. The new reception center includes the main
didn't have her body alarm or radio on her when she was
prison and the annex and will receive an average of 160
killed.
'
newly-sentenced prisoners a week.
'~We regret that she wasn't wearing them/" said Gretl
Asst. Warden Richard Comerford said the plan to' Plessinger, an FDOC spokeswoman. "Could that have
change the prison to a reception center took over a yea~s
saved her? I don't know." ,
'
preparation.,
'Plessinger said a team is reviewing the investigation. "
Once received;,nwprisC?ners will go through a five-day
report that was released in November and the team will
orientation process. Once processed. prisoners will then
make recommendations that could lead to policy changes.
spend 3-4 weeks at the ~nter before being transferred to
So far the only visible change that the FDOC has made
other state prisons.
'
following Fitzgerald's murder. is the mid-November
FDOC Secre.tary Walte.rNcNei!was the featured I posting of posters at various locations throughout Florida's
speaker at the, changeover ceremony. He described the· prisons. The posters show aodiverse group of prison guards
reCeption process as the ,lieginning of the effort to slash
huddled together along with a (rather ironic, and
Florida's high recidivismIrate and reduce the need to spend
inaccurate) caption proclaiming, "We Neve,r Walk Alone.'"
hundreds of millions on new prisons.
McNeil noted that about one of every 145 Floridians is
[Note: The initial reporting in FPLP on Officer Fitzgerald
incarcerat~, on probation or under some other form of
being killed raised question,S about whether a body alarm
supel'Vision by law enforcement "We expect to handle
and radio were present months,before the FDOC finally
about 125,000 imitates over'the next three to'five years,
admitted Fitzgerald had neither. See FPLP, Vol: 14,lss. 3]
and that's a treme,ndous burden on the State.of Florida."
_

W

8

A

Florida Prison Legal Penp~ctive8

by
Ryan J. Sydejko

POST CONVICTION
CORNER

A defendant may not be subjected to a criminal trial while possessing mental defects
which prevent full understanding of the proceedings against her. Drope v. Missouri, 420 U.S.
162 (1975). To conduct a trial while a defendant may be incompetent violates her right to a fair
trial, Hill v. State, 473 So.2d 1253, 1259 (Fla. 1985), as well her right to Due Process guaranteed
by the federal constitution. Pate v. Robinson, 383 U.S. 375,378 (1966).
,

The burden on the trial court to ensure a criminal defendant is competent is "a great one"
and requires the judge to be "very diligent in ascertaining competency." Fuse v. State, 642 So.2d
1i42, 1146 (Fla. 4th DCA 1994). Thus, in order to preventtrying incompetent defendants,
•
Florida courts have developed a series ofsteps to follow. Initially, the issue regarding
competency arises when "there is reasonable ground to believe the defendant may be
incOmpetent, not whether he is i~competent.", Petrena v. State, 914 So.2d 999 (Fla. 1st DCA
2005); see also Fla. R. Crim. P. 3.21 O(b). The disti~ction between actual incompetence and mere
suspicion ofincompetence is important. All that is required to trigger the protections afforded '
under the Rules," is a "reasonable ground to believe" that a particular defendant is incompetent.
Fla. R. Crim. P. 3.21O(b). The Rule states that this doubt can be expressed by defense counsel,
the prosecutor, or even the judge. Id.
,"
.

.

.

,

'

"

.

.Once a reasonable ground to question the defendant's competence has been expressed,
the trial court must conduct a hearing on the matter within twenty days. Id. Such a hearing is
• absolutely mandatory. Boggs v. State, 5:']5 So.2d 1274, 1275 (Fla. 1991). Failure to conduct the
hearing constitutes reversible error. Nowitzke v. State, 5~2 So.2d 1346 (Fla. 1990). ,Prior to the
hearing, however, the defendant must be exami~ed by two or three experts. Fla. R.· Crim. P..
3.210(b) and Fla. Stat. § 916.1,15(1)(b). These expert evaluations are intended to assist the court,
during the hearing, in determining whether the defendant is competent to proceed. When the trial
court fails to appoint experts, or only appoints one expert, the Florida Supreme Court has held
that ·'there is no doubt that the trial judge erred." D'Oleo-Valdez v; State/531 So.2d 1347, 1348
,(Fla. 1988).
At the competency hearing, the judge will consider the evaluations, as well as any
testimony that may be heard. The trial court will then make a determination as to the defendant's
competency. In the event the defendant is found competen~ standard pre-trial proceedings will
occur as usual. The trial court's ruling is difficult to overturn on appeal, as courts have held that
it will remain undisturbed absent an abuse of discretion. Carter v. State. 576 So.2d 1291, 1292 (F1a. 1989).
Not all courts, however, abide by the clear dictates of Rule 3.210(b). An example is
Pinellas County, Florida. There, Courts have adopted their own procedure which, arguably,
averts the whole process outlined in Rule 3.210(b). When a reasonable ground to doubt a

,9

Florida Prison Legal Perspectives

defendant's competency arises in pinellas County, the judge simply files a pre-filled form
entitled "Order for Psychological Evaluation." The form states·that
."The Court finds that the issue of the Defendant's competency must be addressed.
It is therefore necessary to appoint the Court P~ychologist for the Criminal
Division to evaluatc the Defendant for tne purpose of determining the need for a
full competency evaluation and/or to conduct such evaluation."
First, by ordering that "competency must be addressed". the Co.urt is acknowledging that
a reasonable doubt as to the defendant's competence exists. And, as a result, the Court is
.
ordering a competency evaluation. Thu~. at first blush, it appears the Court is abi~ing by Rule
3.210(b).
Where the Court goes astray, however. is the reason the evaluation is needed. The
evaluation is needed "for tl)e purpose of detcnnining the need for a full competency evaluation."
In other words, the·Court is ordering an evaluation to see if it needs to order an evaluation. Such
.a process effectively circumvents the entire purpose of Rule 3.2 IO(b). The Rule clearly states
that once a reasonable ground to doubt the defendant's competency arises; two competency
evaluations must be conducted, followed by a hearing on the '!latter. Fla. R. Crim. P. 3.21O(b).
Pinellas County avoids that whole process by appointing the "Court Psychologist for the
Criminal Division" to detennine whether an actual evaluation is necessary. Ofcourse, the Rule
does not provide for such preliminary evaluatioris..
The remedy for violations ofthe Rule, as appear to be occurring in· Pinellas County, is
vacation ofthe judgment and sentence with directions that rc-proseeu~ion only occur a~er a full
and adequate determination ofthe defendant's competency to stand trial. Hill v. State, 473 So.2d
1253, 1260 (Fla. 1985). A post conviction competency hearing is inadequate because it is
•
impossible to retrospectively assess a person's competence. ld. at 1258-t259.. Thus, the
defendant must be placed in a pre-trial posture where n contemporaneous determination of .
competency can be made. Id. at 1259. Only a contemporaneous finding of competency will
ensure'a defendant's constitutional right to Due Process ~as been protected. Id. at 1259 and
Drope v. Missouri, 420 U.S. 162, 182-183 (1975).
Ryan J. Sydejko. is an associate attorney at the law qUice q( Loren Rhoton. P.A. in
Tampa. Florida,. and i'S a member i:J good standing with the Florida Bar. Mr.
Sydejlco is a publishedamhor on terrorist investigations and how they have reshaped
the Fourth Amendmel1l. Mr. Sydejko focuses prim(lri~v on representation qf
incarcerated. persons vdth post cOIll'iclion matters in both State
and Federal'
courts.
.
Loren D. Rhoton is a member in good sfcmding with the Florida Bar and a member
of the Florida Bar Appe/latl:! Practice Section. Mr. Rhoton practices almost
. exclusively in the postconl'ictionlappe/late area q( the law. both at the state and
jederal levels; He has assisted Illmdreds qfincarcerated persons with their cases
and has numerOl/S written appe/latc opinions. rnJ

10

Florida Prison Legal PerepectiVes

FPLP': I am an avid reader and subscriber to,your newsletter "Florida Prison Legal Perspectives". I would like to
say first and foremost that the prisoners of Florida greatly appreciate your information and advise that is offered
in each edition, and I want to personally thank you for I deal in a lot 'of administrative remedies' and try to
educate other prisoners of the rights they can be afforded through education and other resources available. 'I
wish there was some way to bui'd more unity among prisoners on a humble level, instead of trying to gain the .
favor of staff who in the long run wind up screwing you over for your "Good Deeds". Snitching or telling is
becoming such a cominon place on the most silliest and superfluities levels. When will we stop hurting
ourselves and others who are in the same situation as us, and start becoming the men/women that society·argues'
we will never be?
'
Dear FPLP: Greetings, as I'm 'very happy with my FPLP, I also become more aware of this prison environment
that I am in. As you know I am residing in one of the wo~t know institution, Taylor C I, but I thank Go~ that
things are no longer the way they used to be. 8' tremendous change has taken place unexpectedly, well·God only
knows..Your legal magazine has helped me to have a quiet mind, and encouraged me to use some ofcited cases
to work out my own case. I am very grateful for your service. SN TCI
Dear FPLP:' I see that the Legislature has cut the educational budget so that many public schools are Closing up.
While Governor Crist is demanding that more prisons be built (at tax payers expense). My Suggestion would be
that our Governor simply order the DOC to put razor wire around the vacated public schools and use the
abandoned buildings to house prisoner's. What do yO\! think: I.Iook fory.rard to recei.ving the next issue of FPLP.
.' Thank you. KR SCI
,
Dear FPLP: I am currently serving a natural life sentence for· a RICO violation, which was based solely on
forged checks that did not exceed $20,000 total. I am still at disbelief that I received such a sentence. I am no
angel, but life imprisonment is sb;nply unwarranted. I have on~ issl1e to inform the readers aboui and. Loren
Rhoton wrote an article in the post conviction corner upon me writing him. In a nutShell, I was charged in St.
Lucie county, FL 19th circuit by the Asst. State Attorney. The state alleged 43 check crimes underlying the .
RICO charge. As I looked into the charging ~ocument I discovered at least 23 of the offenses occurred outside .
St. Lucie County. Actually from 6 counties and four judicial circuits all the way to Hillsbourgh County: I
challenged the states jurisdiction to file'charges'when ,the offenses occurred ,in two or more judicial circuits
which was denied. The 4th DCA affirmed with 2 page opinio~ 965 S02d 350 (4 DCA 2007). According to the
Florida const. there is only one person who .can do that, called the statewide prosecutor under Art V sect. 4(c)
Fla. const. Fla. Stat. 16.56(a) authorizes the.OSP to prosecute crimes occurring'in two or more judicial circuits
as part of a related transaction.· It does not apply to ASA's in one circuit. The DCA opinioned that in fact an
. ASA can charge defendants with' crimes that are committed in any county- in the state. This ruling enhances a
prosecutor'sjurisqictiQn tantamount'to the OSP. They were created for that purpose King v. State 790 S02d 477.,
The legislature budgeted $7,182,399.00 for 08-09 operation for the OSP. Why fund the O~P if Asst. State
Attorneys can prosecute cases involving ~rimes occurring in other judicial circuits? The DCA's decision done
just that and renders the OSP superfluous. Unfortunately'the Sup. Ct. denied review. Hopefully rcan obtain an
attorney to file back to the Sup. Ct.. The tax payers of Flo~da should not funcl the OSP if the existing state
attorneys can d,o what the OSP can do. Just goes to show how the courts twist and misinterpret clear language of
a law in order to deny a person relief. LS APC~'
11

.'

Florida Prison Legal Perspectives
Dear FPLP: Unlocking America- The JFA Institute. This r~port was done by a group of Law Professors in snon
it states: There is no end to the growth under current policies. The PEW charitable Trust Reports that under
current sentencing policies the state -and Federal prison populations will grow by'anoth.er 192,000 prisoner's
over the next five years. The incarceration rate will increase from 491 to 562 per 100,000 populations. And the
nation will have to spend an additional $27.5 Billion in operational and construction costs over this five year
period on top of the over $60 Billion now being spent on corrections each year. A,ssuniptions about crime and
punishment are in correct. In particular, we demonstrate that incarcerating large nUIfiQers· of people has IittJe
impact on crime, and show the improper use of probation and parole increases incarceration rates while doing
little to control crime. We. set out an organizing principles for analyzing sentencing reform, embracing a
retributive sentencing philosophy that is mainstrear.n among contemporary prison policy analysts and sentencing
scholars. Based on'that analysis, we make a series of recommendations for changing current sentencing laws
and correctional policies.'Each Recommendation is practical and cost-effective., This recommendation would
safely reduce the nation's prison and jail population to half their current size. This reduction would ge~erate
savings of an estimated $20 Billion a year. The result would be a system of justice and punishment that ~s far
less costly, more effective, and more humane than what we have today. A statement by Justice Anthony M.
Kennedy '08' "Our resources
.misspent, our punishments tQo severe. our sentences too long." It's time
. brothers and sisters. this is a 32 page report giving recomme.ndation on changing our system. BE GCI

are

Dear FPLP: well first of all I want to thank: you all for the great job you have done over the years, not just for us
behind the Wire but for our families on the <?ther side. I have been in prison in Florida for II years and I've been
a subscriber for most of those years. The info in your magazine has been a great"help to me. Now I wish to
show my now adult daughter what FPLP is all about and how she can help make a difference by. being a
member of FPLAO. FPLAO thank you for all you do fOf us and our families. We a,re grateful. JM' AP C~ ,
I am a resident of Georgia, but I am trying to bring attention to what I feel is an unjust prison system. I have a
relative in prison in Florida; therefore. I am concerned that he' may never be released under the, system now
being used. Our local news comes from Jacksonville, so we hear often of the overcrowded conditionS in the
prisons, the indictments over corruption by officers in the prison system and other abuses of the system from
inmates and those entrusted to uphold the law. There are about 5,000 prisoners in the system that have a
sentence of life, with 25 years mandatory. These cases need to be looked at 'On an individual basis to determine
, if they need to be released. That is not being done under th~ system Florida is using. Many of these, after
serving 25 to 35 or more years are simply being rubber stamped "denied or see you in five years for another
hearing." Gov. Charlie Crist said when he signed the Civil Rights RestorationBiII forex-inmates "it was time to
show compassion for,those who had paid their dues." Crist and the legislators should look at a parole system
that is costing the state $15 milliori a year. a system that is broken and has not been functional in years. It is a
parole system that is holding a' bunch of old men hostage. These men are 55 to 80 years old or older. men who
, . have already served 25 to 35 or more years in prison.·In any other state in America, these men would 'be home
living productive. crime-free lives. Statistics prove these "lifers". have the I,owest recidivism rates. These old
men are mostly sick. costing millions of dollars a year in medical expenses alone. Where is Crist's compassion
for these men who have also paid their dues? These men are being overlooked every year. Most of these men
will probably die in prison because no one cares enough to help fix the parole systelJl. Where is the
compassion? I know the average citizen of Florida isn't concerned with a. problem that doesn't touch their lives,
but it is touching them in the pocketbook, every year i~ the millions of dollars. I know that the present sYstem
isn't working. ,so try something different. Most of these lifers are sick and old and need to be home with their
families. Allaine Ridenour Ga. Note: Takenfiom Letters from Readers The Times-Union.
Lelters'to the Editor from FPLAO me".'bers· may be printed in this section, The identity of letter writers will be by
abbreviation. unless otherwise specified by the writer. for protection against possible retaliation and to encourage
freedom of speech. All letters printed are subject to editing for clarity and length. All leiters cannot be printed but are
invil~d. Address letters to:. Editors. FPLP. P.O. Box .1069. Marion. Ne 28752. If your leiter also concerns membership.
membership renewal. address change. etc., please address that matter at the beginning of the leiter. to assist staff in
12 processing your mail.
•

Florida Prison Legal Perspectives

NEWS~RIEF
AL- A judge ordered DOC on
October 8. 2008. to release records
into the death inxestigation to the
prisoner's mother: after ,she sued
DOC. Farron' Barksdale. 32. was
found comatose in' a cell three days
after arriving at a state prison.
Barksdale was convicted, of killing
two Athens police .officers. DOC
claims the prisoner died from antipsychotic drugs and excessive heat.

wound. Authorities say Beavers shot
two p.eople over domestic issues
while on a weekend furlough .. The
two victims are expected to recover
. fully. The names were not released
by authorities.
'
AR- Authorities on October 22, 20Q8
captured a prisone~ who drove a
tractor off prison land during the first
week of October. Dina Tyler, 62,
was captured trying to visit his
daughter's house in Pope County.
The incident took place' at the Varner
Uni~.
.

AL- On Dec. 3. '08. the wife of
Robert Doyle. who spent over two
years in prison. was ,awarded
$129.000 by a state panel. The
money must still be appropriated by
the Alabama Legislature. The
compensation
was
, monetary
,recompense for Doyle's unjust
conyiction and incarceration. and
was awarded to Donna Doyle since
Robert Doyle. died last year. Robert
Doyle
had
been' wrongfully
convicted of abusing daughters frc;>m
a previous marriage but had been
freed when it was learned that a state
prosecutor had withheld evidence
that showed Doyle's innocence. The
prosecutor is immune' from paying
any penalty for trying to destroy
Doyle's life.

AR- On July 23, 2008, Shawn
Goodwin. the former police chief of
Plainview was sentenced to six years
in prison after a no contest plea to
second-degree
sexual
assault.
Goodwin was initially charged with
raping a 13 year old girl. The charges
were filed after his family's teenage
baby sitter tiled a report:
AR- Authorities found the body of a
state prisoner on a weekend furlough
about a half-mile from where a
shooting occurred on September 21,
2008. The body of Craig Beavers Jr.
was found the next lay in a wooded
area near Nashville. Beavers died of
an apparent self-inflicted gunshot

All-

A prosecutor told the Miller
County Sheriff, Linda Rambo, on
October 29, 2008 to resign or face
criminal prosecution. This came as
part of an investigation that Rambo
allowed a jail sergeant to use a
county-owned truck and help from a
jail inmate to assist in a move.
Rambo claims that she did not realize
she was breaking the law.

~

CA- In a 4-3 decision, the state
Supreme Court on August 21, 2008,
ruled thilt, Gov. Schwarzenegger
improperly . denied parole to' a
rehabilitated murderer who spent 23
years in· prison. The court further
held that the governor must consider
more than just the nature ofthe crime
when he votes decisiC?ns during
parole hearings.
CA- The city of Los Angeles settled
a civil rights lawsuit filed by a
former prisoner, Eric Robinson. The
settlement took p.lace on July 23,
2008, with the. city agreeing to pay
$1.15 million to Robinson who spent
nearly 14 years in prison for murder
before DNA eVidence cleared him.
Robinson argued in his suit that
police framed him. He had been
convicted of a 1993 gang kiUing in
South Los Angeles..

CA- Danielle Jones, 21, the wife of a
prisoner, pleaded not guilty on
· ~eptember. 16, 2008, to charges she·
tried to free her husband by forging
documents and. judges' signatures
authorizing his release: Jones. was
charged with five counts facing up to
five years in prison. Jason Jones, her
husband, is serving two life
sentences for murder.' attempted
murder and ~ shooting.
CA- A man sentenced to 53 years to
life in prison for murder on
September 18, 2008, told a superior
court judge that the murder victim
"deserved what he ,gol" Angus
Macintyre, 48, shot and killed his
attorney for .iscrewing. up" his
workers' comp~nsation case. The
attorney, Jay Bloom Becker. 61. was
shot in'the head in his office in Live
Oak two years ago. Superior Court '
Judge Jeff Almquist in response fo
Macintyre's comments said. it gave
· him "great pleasure" to sentence him
. to the maXimum~
CT- A former Madison police officer
was sentenced on Septe~ber 16,
2008 to probation and ordered .to
repay more than $4,500. A judge
sentenced Joseph Gambardella' for
stealing sea~ood fr<!m a restaurant
and gasoline from town pumps.
Gambardella pleaded no contest to
burglary and larceny charges. He is
one of eight Madison police officers
arrested, fired or investigated 'for
wrongdoing. The Madison police
· chief is also currently on leave
pending an investigation. .
FL- During early Nov. '08 a Bay
. County Jail correctional guard was
arrested and charged with 'smuggling
co.ntraband into the jail. The guai'd,
Angela Chiles was found to have
.prescription pills on her when
starting a shift, ~ccording to the

13

~~orida

sheriff's office. Further investigation
discovered that she had been taking
other contrBbait~ into the jail.

FIr The Florida. Department of Law .
Enforcement and' FDOC's Inspector
· General's Office arrested a prison
guard Nov. 7, '98 on a charge of
sex.ual.battery. Geno Lewis Hawkins.
43, a 'prison guard at Gadsden
Correctional Facility, a private prison
run by Corrections Corporation of
America, was arrested at his home
and booked ito the Leon County Jail.
He was being ·held without bail.
Hawkins aHeged.ly was involved in a.
sexual relationship with a prisoner at
the female prison. He faces a
maximum 30 year ilrison sentence.
A 37-year-old corrections
officer with the Collier County
Sheriff's.Office resigned Sept. 5, '08,
following accusations that he raped a
female prisoner in a jail stairwell,
·molested another female prisoner and
made sex.ually explicit comments to .
a third. Cpt. Louis J. Aguinaga
resigned days after he refused to
provide tes~imony about the detailed
accusations during an internal
investigation. Two' of tile female
prisoners passed polygraph tests on .
their allegations. Aguinaga was the
second Collier corrections officer to
resign in just over. a year after
. allegations' of se~ual misconduct
were leveled by femille prisoners.
The Collie'r state attorney has refused
to press
charges on either officer.
,
FL-

FIr On ~ov. II, '08. a woman who
spent a night at the Volusia County.
Correctional Facility, filed a formal
complaint aHeging that she had been
sexually assaulted by one or more
female - corrections . officers.
According to her complaint. the
woman claims that after she was
booked into the jail on Nov. 4 for
misdemeanor retail theft she
complained of diabetic low blood
·sugar she was ignored '~nd taken to a
cell. Once there she claims she felt
dizzy and fell to the floor. Four
officers then' entered the cell and
14
I

Prison Legal Perspectives

begin slapping her and pulling her
hair. She was then taken to the
infirmary where it was claimed she'
was faking. The officers then took
her to an isolated cell and ordered to
her to strip for a search. According to
her .complaint, once she disrobed one
guard pinned her legs while another
sexua'ly battered her with her hand.
While that was happening another
guard groped her breasts to the point
of pain. while the fourth guard stood
and watched. The accused guards
were not named in mainstream media
reports. Sheriff officials said the
investigation was turned over to the
FOLE.
FL- A probation officer who has

worked in Calhoun County for
several years was.arrested on ctrarges
of Out along' with possession' of
meth and less than 20 ,- grams of
marijuana. Arrested' was Ryder
Laramore. '44. of Marianna.
According to the Bay County
Sheriff's Office, several 911 calls had
be~n received about a black car
running vehicles off the I'()ad. The
car was stopped and a deputy spoke
with the driver. ~dentified as
Laramore, who was wearing
women's clothing, black hose, and a
blonde wig. A bottle ofVodka was in
plain view. Laramore failed a test. A
search of the car turned up meth. a
glass pipe. and a small bag of'
marijuana.
FL- />.to correctional officer who had
worked in the Calhoun County Jail
was fired Sunday. a day after he was·
charged with out by a Florida
. Highway Patrol trooper. Arrested
was 46-year-old Andy Ray Cook.
This was his fourth' DUl. according
to FHP Sgt. Lonnie Baker. Cook
attempted to follow the trooper's
directions to conduct a roadside
sobriety test before he stopped aJ1d
said. "1 can't do it". AS he was
handcuffed. Cook told the .trooper.
that he was the work squad officer
for the sheriff's office. Cook was
~en to the jail and gave a breath
sample on the intoxilyzer to

determine his blood alcohol level
(BAC). Florida's .BAC is 0.08.
Cook's' samples. taken at 'I :03 a.m.,
were .107 and .103.
FL- On .September . II, . 2008. a

Tampa Judge Daniel Perrey ordered
61 jail inmates back to the jail so
. they could change into better-fitting
orange panis. The judge said that he
did not want to see people "with their
rear ends hanging out." The
Hillsborough County sheriff's office
sent' spare pants in various sizes to
the courthouse for future offenders,
said officials.
.
ID- On September 7, 2008. a judge
rejected plans to build a new Bonner
County juvenile jail and work release
center. The judge ruled that th~ state
constitution required pU\llic votes on
debts that extend beyond one fiscal
year and no public votes had be~n.
made. The cOuntY would pay more.
than 5782,000 a year under the plan.
After 30 years the county would own
the buildings. The plan called for
financing the buildings through fees
charged to inmates.
ID- After, a judge ruled that Keith
Allen Brown was incompetent 'to
face criminal trial proceedings for a
murder, a jail chaplain resigned his
ministry ata jail to speak publicly
about Brown. Scott .Herndon,
resigned his ministry on September'
22, 2.00& at a northern Idaho jail to
speak publicly about the mental'
competency of Brown. Herndon
claims he spent time with Brown 'at
the jail and insists that Brown is
competent to. face trial for. firstdegree murder..
KS- On October 22,. 2008. two
guards working at the maximumsecurity section. of the Leavenworth
Detention Center were stabbed. The
attacks took place separately but
simultaneously. said authorities. The
names of the two inmates that
allegedly stab6ed' the guards were
not released. Neither were the names
of the guards who were hospitalized.

Florida Prison Legal Perspectives
Officials claim that the motive of the
attacks is unknown.

and Terry Lewis were'dating when
thc::y were sentenced in 2005.

NH- Carl Laurie, 58, surrendered to
Concord police on October 30, 2008
after he walked away from a halfway
house on October 29, 2008. Officials
said that Laurie left his halfway
house to .Iook for a jpb and did not
return. DOC records .show that
Laurie was serving time for a 1989
second-degree murder conviction.

NY-. On Nov. 24 a former
corrections officer, Everitt George,
38, was sentenced to life in prison for
murdering his two children, one of
whom was a toddler who was sitting
in her highchair when shot. George
reportedly killed the children' to
punish his wife for seeing anoth~r
man.

NJ- On August 19.2008. a prisoner
serving a 30 month sentence in
Camden admitted. that he 'tried to
have his estranged wife killed.
Richard Kaplan asked another
prisoner to find someone to kill his
wife. In tul'Q, this prisoner snitched
on Kaplan. He now faces 10 years.
The name of the snitch was not
released by authorities. .

NY- What a _Thanksgiving~ On Nov.
25, '08, Steven Barnes walked out of
Oneida County Court a free man
after DNA testing cleared him of
raping and killing Kimberly Simon,
16, in 1985. Barnes spent more than
19 years in" prison for the crimes,
which prosecutors tinally had to
admit-he didn't commit.

NJ- .Sgt. Christopher Stahl. 39.
pleaded .guilty on September 15,
2008 to theft. The Rockaway
Township police walked out of a
Quick Chek in Rockaway Borough
with eight breakfast sandwiches
worth almost S30. Stahl was fired
and must pay S100. Robert Bianchi,
the prosecutor, said that the plea
"represents the fact that no one is
above the law."

PR- A prisoner was released from a
Puerto Rico prison after' being
wrongfully convicted of murder.
Jonathan Roman Rivera serv~d eight
months in prison for killing a
Canadian businessman in 2005.
Rivera was sentenCed to 105 years in
prison. However, FBI investigators
determined that Rivera was innocent
and wrongfully sentenced. Another
man has been arrested and charged
with the murder, said a prosecutor.
The courtroom announcement took
place on September 15, 2008, three
months after- the FBI determined that
Rivera was innocent.

NV- A federal jury awarded damages
to a former guard on August 20,
2008 in the' amount of $350,000.
Richard Cosgrove filed a lawsuit
against the DOC head after being
sc- Prison officials announced on
August 25, 2008 their plans to install
tired from the Nevada Stat: Prison.
Cosgrove was allegedly tired for • . better equipment, drilling new wells
bringing 'DVDs into a gun tower
and using other conservation tools to
while on duty. The former guard
save money. Officials say that by
argued in his suit, that he was fired . doing so they will save $1 million a
for criticizing the warden's decision
year in energy and water costs. The
to cut prisoner programs at the
project is ~ing funded by the State
prison.
Infrastructure Bank through a $14
million state loan.
NV- DOC officials responded on
September 11,2008 to a lawsuit filed
sc- The Col4mbia newspaper
on behalf of two prisoners who want
reported during the last week of
August 2008, that a DOC employee
to marry. DOC argues that allowing
filed a lawsuit asserting the DOC
the two prisoners to marry would
retali~ted against her for reporting
endanger the public. Becky Rivero

corruption to state senators. The suit
was tiled by Linda Dunlap who
named as' defendants the prisons
director Jon Ozmint and the director
of health services, Russell Campbell.
TX- A state judge agreed on August
26, 2008, not to send a woman
charged in the death of her 2-yearold' nephew to jail provided she wear
a tracking device until her trial.
Mayra Rosales weighs nearly 1,000
pounds and the county jail lacks a
large enough cell and the' medical
resources, said prosecutors.
TX- A Dallas appeals court
dismissed the ease against Michael
Blair on September 18, 2008, after
DNA evidencecl~ared him. Blair
was convicted and sentenced to death
for the 1993 molesting and strangling
of 7-year-old Ashley Estell. DNA
test show that another man, now
deceased, is a plausible suspect, said
prosec~tors.

TX- A prisoner who escaped on
,September 9, 2008 from the String
Fellow Unit in Rosharon was
recaptured on September 28, 2008.
Authorities
say that
Marlow
Reynolds climbed 'a fence at the
prison recreation yard in the path of
Hurricane Ike days before the storm
slammed the Texas coast. Reynolds
was found in the woods near the Gulf
Coast town Brazoria about 25 miles
from the prison.
TX- A state wide prison shakedown
which started on October 20, 2008
has yielded 13 ~ell phones. Prison
officials say that' all the prisoners
were locked down after the
disclosure that a death row prisoner,
Richard Tabler, used a smuggled cell
phone to threaten a state senator and
shared the phone with nine prisoners.
A phone and a charger were found in
the ceiling of a shower area in the
death row building at the Polunsky
Unit, said officials. The Texas prison
astern has about 155,000 prisoners.

15

Florida Prison Legai Perspectives
CONFRONTING SUMMARY JUDGMENT

IN
EXCESSIVE FORCE CLAIMS
UNDER 42 u. S. C. §1983 CML RIGHTS ACTIONS
AND ITS

RELEVANCE IN RELATION TO QUALIFIED IMMUNITY
LEGAL STANDARD
In connection with a Rule 56 motion, Fed. R. Civ. P. "Sw.'nmary Judgment is proper it: viewing all the filets ofthe
record in a light most favorable to the non·moving party, no genuine issue of ~terial fact remains fC?r adjudication".
Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 247·250, 106 S.Ct 2505, 91 L. Ed, 2d 202 (1986). '
The role of the court in ruling on such a motion "is not to resol,*:e disputed issues of fact but to assess whether
there are any factual'issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving
p~~'

.

.

The moving party bears the burden of proving that no genuine issue ofmaterial fact =;tists or that by reason ofthe
Pllucity ofevidence presented by the non·movant. no rational jury eQuld find in favor ofthe non-moving party.
In the case of a: pro selitig~t a court is instructed to read the pleadings "liberally and interpret them to raise the
strongest arguments that they suggest." Mc Pherson v. Cogmbe, 174 F.3d 276, 280 (2ad Cir. 1999)., However "application
of this different standard does no relieve the plaintiff (prisoner) ofhis duty to meet the requirements necessmy to defeat a
motion for summmy judgment."
, EXCESSIVE FORCE
A l,ikely counter ,by Defendants in this type of claim is that'any force, allegedly used was directly related to
maintain order, discipline and security within the prison, and that the alleged acts do not raise to the level of a
constitutional violatiOn because they involve nothing more than de minimus use offorce.
'
,
Such counter can however be overcom~ .. ''The cOre judicial inquiIy" for claims of excessive force is "whether
force was applied in a good-faith-effort to maintain and restore ~scipline, or maliciously and sadistically applied to cause
bann". Hudspn v. Me Miltiam. S03 U.S. 1,7.s, 112 S.Ct. 995, 117 L. Ed. 2d 156 (1992).
'
To establish a eOnstitud.orial claim of excessiv~ force, "two conditions", one subjective and the other objective,
must be met. Hudson. 503 U. S. at 20. The subjective condition is satisfied if the defendant has a "sufficiently culpable'
state of mind... shown by action characterized by wantonness". In detennining whether the use of force was wanton, a
court evaluates " the need' for application of force, the relationship between that need and the amoUDt,of f~ used,· the
threat reasonably perceived by the responsible officials, and any efforts made to temper the severity of a forceful
response". Hudson 503 U. S. at 7.
A prisoner can satisfy the subjective condition by proffering sufficient evidence showing that a reasonable juror
could conclude that the officials' conduct was wanton and malicious because there was no "need for the application of
force used" and no "threat reasonably perceived by officials". Therefore, a rational jury coUld find that the physical abuse
,allegedly inflicted was des:fned, and not reasonably related to a security need, but to harass and intimidate. See Harris y.
Chapman. 97 F.3d 499 (11 Cir. 1996).
The objective condition is satisfied ifit is "shown that the deprivation alleged is objeqively sufficiently serious or
harmful enough", Hudson; S03 U.S. at 8: This condition is satisfied "even if the victim does not suffer serious or
significant injury provided that the amount offorce used is more than de minimis, or 'involves force that is repllsnlnt to the .
conscience ofmankind."
A prisoner can satisfY the objective condition when viewing all the facts of the record in a light most favorabl,e to '
the Plaintiff (Prisoner) 'that a reasonable juror could conclude that being repeatedly struck by prison guards without·
, provocation with such force to ~use bruising, bleeding, broken bones or other significant injuries. that such actions were
"sufficiently serious or harmful enough", to satisfy the objective condition. Hudson, 503 U. S. at 8,
Therefore, when there are genuine issues of material filcts existing, regarding the amount of force used and the
severity ofinjuries suffered, the gninting ofsummary judgment is inappropriate,
FAILURE TO INTERVENE

Law enforcement officials can be held liable under Section 1983 for not intervening in a situation where excessive,
, force is being used by another officer. See Velazgues v, City of Hialeah. 480 F.3d 1232 (11 lit Cir~ 2007). Liability may
attaclt only when (1) the officer had a realistic opportunity to interVene and prevent the hann; (2) a reasonable person in
16

"

.

Florida Prison Legal PerSpectives

the ~fficer's position would know th~t the victim~s constitutional rights were being',violated; £3) the officer does not take .
reasonable steps to intervene. McLaurin v. New RochellePolicc Officers. '373 F. Supp 2d 385. 395 (S .D. N.Y. 2005).
Ifthere is no reasonable opportunity for a correctional officer'to intervene because the episode of excessive force
is not of sufficient duration a court may not impose liability under Section 1983. Therefore. the pleadings must,
adequately demonstrate that the duration was of sufficient duration that officers who aro present had the opportunity to
intervene.
'

discretio~ ~etions

?UALIf!==ified immunity shields goveriunent officials performing
from liability
for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights ofwhich a
reasonable person would have known. Wilson v. Lavne. 526 U. S. 603. 609. 119 S.Ct 1692, 143 L. Ed. 2d 818 (1999).
"A right is clearly established if (1) the law is defined with reasonable clarity. (2) the Supreme Court has
recognized the right, and (~) ~ reasonable, defendant (prison official) would bave understood from the existing law that his
conduct was unlawful." Anderson y. Creighton, 483 U. S. 635. 640. 107 S.Ct. 3034, 97 L. Ed. 2d 523 (1987). ,
Summary judgment may b~granted on this grolqld if the defendant (prison of;ticial) sufficiently shows that (I) the
asserted right was not clearly established, or (2) it was nonetheless objectively reasonable for the official to believe the
conduct did not violate it. '
,.
.
, Qualified imrilunity is an affinnative def~e. thus the "defendants bear the burden ofshowing that the ch8Uenged
acts were ~bjeetively reasonable in light ofthe law existing at that time."
,
Since the right of the prisoner to be free from unreasonable use of excessive force is clearly established.
Defendants must show that it was'''objeetively reasonable" for them to believe their conduct did not violate the prisoner.'s· ,
' .'
,
, constitutional rights..
However, dismissal on the basis of Ii qualified immunity defense is not appropriate where there are facts in
dispute that are material to a determination ofreasonableness. Thomas y. RoACh, 165 F.3d 137, 143 (2ad Cir. 1999)..
F.D.O.C. Rule on Use of Force is contained in Cbapter 33-602.210 Fla. Admin. Co.de. The foregoing is merely
one _ I part ~o consider-when filing a Civil Rights Action under Section 1983~ There are many more principles of law a
litigant must contemplate and researcli. . .

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17

. Florida Prison Legal Perspectives

Loren D.· Rhoton
'I

Postconviction· Attorney

I

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• Direct Appeals
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,
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• Federal. H'abeas Corpus'Petitions
.' 412 East Madison Street, Suite' 1111
Tampa, Florida 33602
(813) 226-3138 .
Fax (813) 221-2182 .
. Email: lorenrhoton@rhotonpostconviction.c~m
Website: www.rhotonpostconviction.C:om
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.

\

Florida Prison Legal Perspectives
. The proper title of a post-ju'dginent motion is a Motion
for a new trial, a Motio!1 to Alter or Amend ora Motion to
'Amend (or make additional findings). Depending on the
type and origin' of the case (i.e. state or federal) and the
Circumstances _ involved ,up to this stage of the
'
proceedings, this course ofaction may be preferred.
A notice of appeal tiled by a prisoner confined at a
correctional institution ,is timely tiled when it is placed in
by Dana Meranda
'
the hands of the institution's mail officials for mailing on
or before the last day it is due to be tiled. Rule 4(c), FRAP
(2008). Timely tiling may be shown bya declaration in '
,.
Timing Form and Content
compliance
with 28 U.S.C. section 1746 or byanotarized
A final order by a District Court Judge in a section
statement,
either
of which must set forth the date the'
2254 Habeas Corpus proceeding is subject to review by
prisoner
delivered
the notice of appeal to prison officials
the Circuit Court of Appeals.'
.'
for
mailing
and
state
that first-class postage has been
The Circuit Court of Appeals has jurisdiction of all
Houston
v.
Lack,
'487 U.s; 266, 108 S.ct. 2379
prepaid.
final decisions of the District Courts under 28 U;S.C.
(1988).
'
"
section 1291.
, The Petitioner should be' particularly aware that a
Since Habeas Corpus proceedings are characterized as
timely
objection to the Magistrate's Report and
civil in nature, Fisher v. Baker, 203 U.S. 174,/181 (1906),
Recommendation
.is generally required to avoid short and
Habeas Corpus Rule If permits application of the Federal
cpnsequences. 28 U.S.C. section
long
term
waiver
Rules of Civil Procedure in habeas corpus cases to the
636(b)(I)(c).
See:
FHC
PP section 18.2 (slh ed. 2005)
extent that the [civil rules] are not inconsistent with any
(discussing
the
failure
to
fil~ a timely objection to the
statutory provisions or the habeas rules: See: 8 I(a)(4),
Magistrates Report .and Recomm~ndation may preclude
..
Fed. R. Civ.P. (2008).
the District Judge and the 'Circuit Court of Appeals from
The Notice of Appeal is required to be filed with'the
reviewing 'certain issues and pointing out the difference
DistrIct 'Court within 30 days after the final order being
between findings of fa.ct and legal conclusions in this·
appealed is entered. In accordance with Rule 58 Fed. R.
situation).
,
Civ. P. (2008), the 30-day period for filing Notice of
The
Circuit
Courts
however, appear to be divided on
Appeal begins on the date the District Court enters
of
this
application
of law. See: Nara v. Frank,
the
limits
judgment, not the date the memorandum decision was
1h
488
FJd
187,
194-196
(3d
Cir. 2007) citing Henley v.
signed. Williams v. Borg, 139 F.3d 737.. 739 (9 Cir.) cert.
Johnson,
885
F.2d
790
(111~Cir.1989).
.
denied 525 U.S. 937 (1998).
appeal
when
reviewing
the
decision
of
the
District
On
In Bowles v. Russell, 127 S.ct. 2360 (2007),. the Court
Court the Circuit Court reviews a District Colirt's
addressed the application of Fed. R. App. P. 4(a)(6) and
,
Resolution oflegal questions and mixed questions of law
28 U.S.C. section 2107(c) concerning extensions of time
and
fact de novo and the factual conclusions for clear
to file Notice of Appeal. The Court held "that the taking of
error.
Arther v. Allen, 452 F.3d 1234, 1243 (11 th Cir.
an appeal in a civil case within the time prescribed by
Z006).
.
statute is mandatory, an~ jurisdictional and may not be
The
contents
required
in
a
Notice
of Appeal are set
extended by either the District Court or the Circuit Court
forth
in
Rule'
3(c),
FRAP
(2008).
A
form
for Notice of
of Appeals except in the limited circumstances permitted
Appeal
may
be
available
in
your
law
library.
If not, the
by Rule 4(a)(5), FRAP." The Court further explained "that
in
the
"Appendix
of
Form's" of
proper
format
can
be
found
there is a 'significant difference between the time
either
the
Federal
Rules
of
Appellate
Procedure
(FRAP)
or
limitations set forth in a statute such as section 2107
th
11
Circult
Rules.
the
which limit the court's jurisdiction, and thos~ ba~d on .
, An appeal must not be dismissed for informality of
court rules which do not. Bowles v. Russell, 127 S.ct. id. ct
form
or title of the Notice of Appeal, or for· failure to
2366
There are ,five limited exceptions to' Appellate Rule, name a party' whose intent is otherwise clear from the
notice. Rule 3)c)(4), FRAP (2008).
4{a)'s strict 30-day time limit. See Hert2/Liebman FHLPP
Prisoners who cannot afford to pay the filing and
.
section 35.2(a) nn. 25_44 (5 th ed. 2005).
docket fees must secure leave to proceed in fonna
. The Running of time' for filing a Notice of Appeal may
pauperis (ifp) from the f?istrict Court, and if denied then
,b,e tolled according to the terms of Rule 4(a), FRAP, by a
from
the Circuit Court of Apeals. See FHL PP section
timely reconsideration motion pursuant to Civil Rules
th
ed. 200S), and Rule 24(8), FRAP (2008).
,
35.3
(5
52{b}, 59, and 60. Browder v. Director, 434 U.S. 257,
A
party
who
was
permitted
to
proceed
in
forma
264,-65,98 S.ct. 556, 56,1 (1978);'Jac~on v. Crosby, 437
pauperis in the District Court may proceed on appeal in
. ,
F.3d 1290,1292 (Il lh Cir. 2006).
forma pauperis without further authorization unless the

Starting The Appeal' Process
And The
Certificate of Appealability
In Section 2254 Habeas Corpus
~ . Proceedings

19

Florida Prison Legal Perspectives

.

District Court certifies the appeal is not taken in good
faithor that the party is not otherwise entitled to proceed in
forma pauperis. 'Rule 24(a)(3).FRAP (2008).
Certificate of Appealability :
The AEDPArepiaced the "Certificate of Probable
Cause" with a new procedural device called "Certificate of
Appealability".
A state prisoner seeking relief under 28 U.S.C. section
2254 has no absolute right to appeal a district courfs
denial or dismissal of the petition. Instead. a petitioner
must. first seek and obtain a (COA) Certificate of
Appealability by mak'ing ,a substantial· showing of a denial
of a constitutiC?nal right AEDPS's substantial showing of
the denial of a constitutional right standard has been
interpreted to codify the Barefoot standard. Barefoot v.
Estelle. 463 U.S. 880. 103 S.ct 3383 (1983). Miller EL v.
Cockrell 123 s.ct. i 029. 1039 (2003).
A petitioner satisfies' this standard by demonstrating
that reasonable juristS could debate whether (or. f9r that
matter. agree that) the petition should have been resolved
in a different manner or that the issues presented were
adequate to deserve encouragement to proceed furthe~.
A petitioner need not convince a judge. or. for that
matter. three judges. that the appeal will prevail. but must
demonstrate that reasonable jurists would find the district
courfs' assessment of the constitutiollal claims debatable
or wrong.
.
A state prisoner must obtain a COA to appeal the
denial or dismissal of a habeas petition. whether such
petition was filed pursuant to section 2254 or section
2241. whenever the detention complained of in the
petition arises out of a process issued by a state court.
Medberry v. Crosby. 351 F.3dI049. 1063 (lilb Cir. 2003).
A COA determination under section 2253(c) requires
an overview of the claims in the habeas petition and a
general assessment of their merits. This inquiry does not
require "futl consideration of the factual or legal bases
supporting the claims. In other words. the examination
into the underlying merits should be limited. Miller-EL·v.
Cockrell, 123 S.ct. id. at 1039:
In Slack v. McDaniel, 12.0 S.ct. 1595, 1604 (2000). the
court decided whether a. COA ,should issue where the
petition was dismissed on procedural grourl'ds. The Court
determined that an assessment of two components were
thus required. one directed at the underlying constitutional
claims and one directed at the District Courfs procedural
holding, reasoning that s~tion 2253 mandates that both
showings be made before the Court of Appeals 'may
entertain the appeal.
' .
.
A Notice of Appeal is treated as an application for a
COAt Gamble v. Sec'y. FDOC. 450 F.3d 1245~.1247(11th
Cir. "2006), following Edwards v. U.S.• 114 F.3d 1083,
1084 (11 th Cir. 1997).
'

20

Unlike the pre-AEDPA Certificate of Probable Cause
to appeal ~ COA must specify each claim that meets the '
substantial showing standard.
.
If the applicant files a Notice of Appeal. the District
Judge who Rendered the judgment must either issue a
COA or state why a Certificate should not issue.
The District Court Clerk must transmit the Certificate
or statement to the Circuit Court of Appeals along with the
Notice of Appeal arid the file or the District Court
proceedings.
According to Illb Cir. Rule' 27-2 (Motion For
1b
Reconsideration) "except as .otherwise provided in 11
.Cir. Rule 40-4. a motion' to reconsider. vacate or modifY
an order'must be filed within 21 days of the entry of the
order subject to reconsideration." .
Rule 22(b) of the Federal Rules of Appellate Procedure
provides that the District Judge is required to rule on the
certificate application in the first instance and in the event
of a denial by the Qistrict Judge. and then the certificate
application goes to the·Circ~it judie for a ru'ling.Hunter
v. U.S.• 101 F.3d 1565. 1575 (I I Cir. 1996) (en banc)
(under the plain language of the 'rule. an applicant gets two
bites of the appeal certificate. apple. on~ before the District
Judge and if that one is unsuccessful. then one before a
CircuitJudge).
.
A Circuit Judge is also required to treat the Notice of
Appeal as an application for COA. "If no express request
for a Certificate of. Appealability if filed, the Notice of
Appeal constitutes a request addressed to the judges of the
Court of Appeals." Slack v. McDaniel, 120 S.ct. id. 'Ilt
1603.
.
Despite this standard treatment of' the Notice of
Appeal. and since the Circuit Judge is not familiar with
the case as the District Judge. an .express 'application for a
.COA at this stage in the Circuit Court is an option that
warrants due consideration.
If the Ci~uit Judge only issues a partial COAan
Appellant·can move for reconsideration asking the Court
to expand the COA to include' the grounds which have
been denied. See: II tb Cir. Rule 22-1 (d). Such motion will'
go .before a three-judge panel. 11 th Cir. Rule 27-1 (d).
Hodges v. Attorney General, State of Florida. 506 FJd
1337. 1339 (11 th Cir. 2007).
A 'denial'ofa COAt whether by a single circuit judge or
. by a panel. may be the subject of a Motion For
Reconsiderat,ion but may not be the subject of a Motion
for panel rehearing or rehearing en bank. See: 11 1b Cir.
Rule 22-1.
As a threshold matter of 'whether to expand review'
beyond the issues certified for appeal by the District
Court, the I i lb Circuit in Jones v. U.S. 224 F.3d 1251.
1256 (1l lh Cir. 2000). clearly expressed that the motion
panel's denial does not bind the panel ~earing the caSe on
the merits. Illb Cir. Rule 27-1 (g) (a ruling on a motion or
other interlocutory matter... is not binding upon the panel

as

-._._----_. -----. Florida 'Prison Legal Perspectives
to which the appeal is assigned on the merits, and the
merits panel may alter, amend, or vacate it).
And in HOM v.' U.S., 524 U.S. 236, 238, 118 S.ct. 1996,
1971 (1998). consistent with the majority opinion, the
Court overruled House v. Mayo, 324 U.S. 42 (1945),
holding that it has jurisdiction under 28 U.S.C. section
1254(1) to review denials of an application for a COA by
a circuitjudge or panel.
. An affirmative example generated by the Court's
explicit holding is reflected in Apker v. U.S.• 524 U.S.
935. 118 s.ct. 2339 (1998) (mem) case below 101 FJd 75
(SdJ Cir. 1996). where the Supreme Court issued a
GVRlLO Order (Grant, Vacate and Remand in Light ot)
HOM. See: FHLPP section 39.2(d) n.42 (5 1h ed. 2005).
The above summary offers some of the basic,
fundamental principles necessary to initiate the appeal
proces!> in section 2254 cases. Specific areas of interest
beyond the scope of this article will require extended
research on a case by case basis. _

THE DALEY LAW OFFICE, P.A.
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