Pollock v. Secretary, Florida Department of Corrections , 349 F. App'x 383 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Oct. 13, 2009
No. 08-10829 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-21696-CV-ASG
RAY ANTHONY POLLOCK,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL OF THE STATE OF FLORIDA,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 13, 2009)
Before EDMONDSON, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
Petitioner-Appellant Ray Anthony Pollock, a Florida state prisoner
proceeding pro se, appeals the district court’s denial of his federal habeas petition,
28 U.S.C. § 2254. No reversible error has been shown; we affirm.
Appellant, who is serving a 30-year sentence for a 1992 burglary offense,
maintains that he is entitled to a “basic gain-time” sentence reduction under Florida
law. Appellant’s efforts to obtain the reduction in state court were unavailing: the
state determined that because Appellant was sentenced as an habitual offender, he
was entitled to no basic gain-time award.* The district court adopted the magistrate
judge’s report and recommendation denying Appellant habeas relief: (1) Appellant
was eligible for no basic gain-time under Florida law; and (2) a challenge to a state
court’s interpretation and application of its own statutes and sentencing provisions
is not cognizable on federal habeas corpus review.
Appellant argues that the district court erred in its interpretation and
application of the Florida gain-time and habitual offender statutes. According to
Appellant, the district court failed to recognize that Appellant had a liberty interest
*
Fla. Stat. § 944.275 (as in effect when Appellant committed his offense) provided
generally for two types of gain-time: (1) basic gain-time was to be awarded (subject to
forfeiture) upon an eligible inmate’s entrance into the system at the rate of 10 days for each
month of the sentence imposed; and (2) incentive gain-time could be awarded on a monthly basis
based on behavior and work performance. Fla. Stat. § 775.084 (as in effect when Appellant
committed his offense) provided specifically that habitual offenders -- such as Appellant -- were
ineligible for basic gain-time; incentive gain time could be earned. Florida has eliminated the
award of basic gain-time altogether for offenses committed on or after 1 January 1994.
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in a basic gain-time award and that the liberty interest implicated his due process
rights.
Federal courts only may entertain a petition for habeas corpus relief filed by
a state prisoner if it is based “on the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). And
under the Antiterrorism and Effective Death Penalty Act of 1996, a federal court
may grant no habeas relief on claims that were earlier adjudicated on the merits in
state court, unless the state court’s decision meets one of these tests: (1) it is
“contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court;” or (2) it is “based on an
unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C. § 2254(d).
“[S]tate statutes may create liberty interests that are entitled to procedural
protections of the Due Process Clause,” Vitek v. Jones, 100 S.Ct. 1254, 1261
(1980). A due process constitutional deprivation subject to federal habeas remedy
is stated, if at all, only when the petitioner shows “a legitimate claim of entitlement
... through statutory language creating a protectable expectation.” Slocum v.
Georgia State Bd. of Pardons & Paroles, 678 F.2d 940, 941 (11th Cir. 1982).
Florida determined that Appellant was statutorily ineligible to receive the
basic gain-time credits he seeks; the state statutes upon which Appellant relies
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support no “legitimate claim of entitlement” and create no “protectable
expectation. That Appellant casts his quarrel with Florida’s interpretation and
application of Florida law in constitutional due process terms fails to transform a
claimed violation of state statutes into a constitutional deprivation. No argument is
made that Appellant was granted basic gain-time that the state later took away, that
the procedures employed by the state failed to pass constitutional muster, or that
acts of the state implicated the Ex Post Facto Clause. Appellant’s due process
claim is without merit.
Appellant’s claim that the state forum interpreted and applied improperly its
gain-time statute is not cognizable on federal habeas review. See Estelle v.
McGuire, 112 S.Ct. 475, 480 (1991) (“it is not the province of a federal habeas
court to reexamine state-court determinations on state-law questions); see also,
Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir. 1988) (“a habeas petition
grounded on issues of state law provides no basis for habeas relief” even when
couched in due process terms). No error has been shown in the denial of federal
habeas relief.
AFFIRMED.
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