[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 11, 2008
No. 07-12048 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00376-CV-4-SPM
DAVID ANSGAR NYBERG,
Petitioner-Appellant,
versus
JACKIE CRAWFORD, Director
Nevada DOC,
Respondent-Appellee,
AKR FLORIDA PAROLE COMMISSION,
Intervenor.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(June 11, 2008)
Before BLACK, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
David Nyberg, a Florida prisoner housed in Nevada and proceeding pro se,
appeals the district court's denial of his 28 U.S.C. § 2254 habeas corpus petition.
We granted a Certificate of Appealability on the following two issues: (1) whether
the state parole board improperly relied on false information in denying Nyberg
parole, in violation of due process; and (2) whether the state parole board's failure
to interview Nyberg and its application of Fla. Admin. Code Ann. R.
23-21.006(3)(b)(8), in denying parole, violated equal protection.
We review de novo a district court's denial of a § 2254 habeas corpus
petition. Davis v. Jones, 506 F.3d 1325, 1331 (11th Cir. 2007). Where a state
prisoner's claim was adjudicated on the merits in state court, federal courts may not
grant habeas relief unless the state court's decision "was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States," or unless a state court decision was based on
an unreasonable determination of the facts in light of the evidence presented. 28
U.S.C. § 2254(d)(2). The AEDPA also mandates deference to a state court's
factual determinations unless the petitioner can rebut that presumption by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1).
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I.
Nyberg first argues that in 1998 and 2000, his parole file contained false
information labeling him as a sexual offender. He asserts the Parole Commission
claimed it never relied on such a label, but the Parole Commission admitted relying
upon the entire official record in making its decisions. He further contends false
information used against a parole candidate violates due process whether or not the
Parole Commission admits the information is false. Nyberg contends he proved by
a preponderance of the evidence the false information was used in his parole
review.
“There is no constitutional right to parole in Florida.” Jonas v. Wainwright,
779 F.2d 1576, 1577 (11th Cir. 1986). Where there is no liberty interest in parole,
"the procedures followed in making the parole determination are not required to
comport with standards of fundamental fairness." O'Kelley v. Snow, 53 F.3d 319,
321 (11th Cir. 1995) (quotations omitted).
However, we have held, even when there is no liberty interest in parole, that
a state parole board treated a prisoner arbitrarily and capriciously in violation of
due process by relying upon false information to deny parole. Monroe v. Thigpen,
932 F.2d 1437, 1442 (11th Cir. 1991). In Monroe, the State admitted a presentence
investigation report that erroneously stated the defendant had raped his victim. Id.
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at 1441. Further, the State admitted it had relied upon that false information, at
least in part, to deny parole and classify the defendant as a sexual offender. Id.
We distinguished our prior decision in Slocum v. Georgia State Bd. of Pardons and
Paroles, 678 F.2d 940 (11th Cir. 1982), in which we found that prisoners do not
state a due process claim by simply asserting that erroneous information might
have been used during their parole consideration. Monroe, 932 F.2d at 1442.
The state courts never explicitly addressed Nyberg’s claim the Parole
Commission mistakenly considered him a sex offender and used that
mischaracterization to set his presumptive parole release date (PPRD). The
evidence indicates Nyberg was treated for sexual-related problems. See Nyberg v.
State, 389 So. 2d 339, 340 (Fla. 2d DCA 1980) (noting he was treated as a
mentally-disordered sex offender). Many of the psychological reports referred to
Nyberg as suffering from sexual problems. Dr. Merin stated Nyberg was “a sexual
psychopath who will require years of treatment before he can be returned to
society.” Upon discharge from the sexual offender program, the attending
psychologist concluded while “psychological test data indicates a basic anti-social
personality pattern it is our opinion that further deviant sexual acting out behavior
is highly unlikely.” However, confusion about what this treatment actually meant
is evident. Patti Simms, the Correctional Services Assistant Administrator for
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Florida’s Bureau of Inmate Classification, issued a memorandum dated May 20,
1999, which stated “[a]s far as the sex offender issue is concerned, according to the
PSI[R], a sex act occurred during the commission of the murder. I go by the
official documents that are in your inmate file.” The PSIR, however, does not state
that a sex act occurred during the crime of conviction. The Simms memorandum is
the only piece of evidence in the record claiming Nyberg committed a sex act
during the crime of conviction.
Nyberg’s PPRD was set for 2010, and the report establishing his PPRD
references the horrific circumstances of his offense as the justification for the
PPRD’s date. However, no reference to a sex act or his alleged status as a sexual
offender was made in the Parole Commission’s decision. The Simms
memorandum states a sex act occurred, but the cited support for her assertion does
not contain such an allegation. Based on the justifications offered in support of
Nyberg’s PPRD, it is reasonable to conclude Nyberg’s PPRD was based on the
horrific circumstances of the underlying offense and not an alleged sexual offense.
See 28 U.S.C. § 2254(d)(2) (noting federal courts may not grant habeas relief
unless a state court decision was based on an unreasonable determination of the
facts in light of the evidence presented). Accordingly, Nyberg’s right to due
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process was not violated as he failed to show the Parole Commission knowingly
relied upon false information to set his PPRD. Monroe, 932 F.2d at 1442.
II.
Nyberg next contends he was treated differently by the Parole Commission
simply because he was incarcerated out-of-state. He asserts the Parole
Commission erred by acting pursuant to Rule 23-21.006(3)(b)(8), a rule that was
not applicable by its terms. Moreover, Nyberg notes he offered two solutions to
his out-of-state status, a telephone or courtesy interview, that would have negated
the Parole Commission's cited reason for not providing him an interview–financial
cost. He contends the Parole Commission’s failure to provide him with an
interview violated equal protection. He concludes he was similarly situated to
Florida prisoners, treated differently, and the basis for that differential treatment
was not rational.
"To establish an equal protection claim, a prisoner must demonstrate that
(1) he is similarly situated with other prisoners who received more favorable
treatment; and (2) his discriminatory treatment was based on some constitutionally
protected interest, such as race." Jones v. Ray, 279 F.3d 944, 946-47 (11th Cir.
2001) (quotations omitted). When differential treatment does not affect a
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fundamental right or single out a suspect class, it is subject only to rational basis
review. Cook v. Wiley, 208 F.3d 1314, 1323 (11th Cir. 2000).
Under rational basis review, the first step is identifying a legitimate
government purpose. Joel v. City of Orlando, 232 F.3d 1353, 1358 (11th Cir.
2000). The purpose need only be a goal the governmental body could have been
pursuing; the actual motivation is irrelevant. Id. The second step is whether a
rational basis exists to believe the challenged action would further the
hypothesized purpose. Id.
The state court did not unreasonably apply the federal equal protection
clause. As prisoners are not a suspect class and the deprivation of an interview was
not based upon a fundamental right, the denial of an interview need only be
scrutinized under the rational basis test. Cook, 208 F.3d at 1323. The Parole
Commission stated financial constraints demanded out-of-state prisoners not be
interviewed by state parole reviewers. Moreover, the Parole Commission claimed
it tried to set up a courtesy interview, but Nevada never provided one. The
evidence provided by both parties on this issue indicates there was a significant
amount of confusion between Florida and Nevada on whether an interview was
requested. Financial restraints are a rational governmental interest, and restricting
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the travel of Florida parole investigators would further that purpose. Joel, 232
F.3d at 1358.
The state courts’ reliance on Rule 23-21.006(3)(b)(8), which was not
applicable in Nyberg’s case, was not contrary to, nor an unreasonable application
of, clearly established federal law. While the state court misapplied state law, the
Parole Commission’s actual conduct in dealing with Nyberg survives rational basis
review, and, thus, the district court did not err in denying habeas relief on this
issue.
AFFIRMED.
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