[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 15 2007
No. 06-14389 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00047-CV-1-MMP-WCS
NORRIS MICHAEL THOMAS,
Petitioner-Appellant,
versus
JAMES MCDONOUGH,
Secretary, Department of Corrections,
FLORIDA PAROLE COMMISSION,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(June 15, 2007)
Before ANDERSON, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Norris Michael Thomas, a Florida prisoner proceeding pro se, challenges the
district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition. Thomas’s
petition included a claim that the Florida Parole Commission had committed an ex
post facto violation by performing only biannual parole reviews, where annual
parole reviews had been required at the time of Thomas’s conviction in 1969 for
second-degree murder. The district court concluded that this claim was properly
brought under 42 U.S.C. § 1983, and denied it as not being cognizable under
§ 2254. The district court also denied all other claims in Thomas’s petition.
On October 23, 2006, we granted Thomas a certificate of appealability on
one issue:
Whether the district court erred in determining that appellant’s
challenge that the retroactive application of the amended Florida
parole guidelines allowing for a parole review every two years,
instead of every year as provided in the guidelines in effect at the time
appellant was convicted, constituted an ex post facto violation was not
a cognizable claim under 28 U.S.C. § 2254.
The Supreme Court has held that habeas remedies do not take the place of §
1983 actions when success in the suit would not necessarily result in a speedier
release. Wilkinson v. Dotson, 544 U.S. 74, 125 S. Ct. 1242 (2005). In Wilkinson,
two state prisoners challenged the constitutionality of state parole procedures under
§ 1983. The Court discussed its precedent, concluding that § 1983 remains
available to a prisoner whose success in the action “would not necessarily spell
immediate or speedier release for the prisoner.” Id. at 81, 125 S. Ct. at 1247.
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Because the prisoners’ challenge in Wilkinson would only invalidate the parole
eligibility procedures, success would not spell an earlier release. Id. at 82, 125 S.
Ct. at 1248.
In Hutcherson v. Riley, 468 F.3d 750 (11th Cir. 2006), cert denied, 127 S.Ct.
467 (2006), we held that “[a]n inmate convicted and sentenced under state law may
seek federal relief under two primary avenues: a petition for habeas corpus, 28
U.S.C. § 2254, and a complaint under the Civil Rights Act of 1871, Rev. Stat. §
1979, as amended, 42 U.S.C. § 1983.” Id. at 754 (internal quotation marks and
citation omitted). Further, “these avenues are mutually exclusive: if a claim can be
raised in a federal habeas petition, that same claim cannot be raised in a separate
§ 1983 civil rights action.” Id.
We agree with the district court that Thomas’s challenge to the parole
eligibility procedure is not properly brought under § 2254. The Court in Wilkinson
held that claims like Thomas’s are cognizable under § 1983. Because § 1983 and
§ 2254 are mutually exclusive, Thomas’s claim cannot be brought under § 2254.
Hutcherson, 468 F.3d at 754. Therefore, the district court correctly denied
Thomas’s § 2254 petition.
AFFIRMED.
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