[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-13455 ELEVENTH CIRCUIT
Non-Argument Calendar NOVEMBER 10, 2009
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 07-21731-CV-UUB
DREW C. HARTLEY,
Petitioner-Appellant,
versus
WARDEN OF FLORIDA STATE PRISON,
ATTORNEY GENERAL OF FLORIDA,
Respondents-Appellees.
________________________
No. 08-15292
Non-Argument Calendar
________________________
D. C. Docket No. 07-22683-CV-MGC
DREW C. HARTLEY,
Petitioner-Appellant,
versus
WARDEN RANDALL BRYANT,
Respondent,
ATTORNEY GENERAL OF THE STATE OF FLORIDA,
Bill McCollum,
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
Walter A. McNeil,
Respondents-Appellees.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(November 10, 2009)
Before TJOFLAT, BLACK and PRYOR, Circuit Judges.
PER CURIAM:
Petitioner, Drew C. Hartley, is a Florida prison inmate. He petitioned the
district court pursuant to 28 U.S.C. §§ 2241 and 2254 for a writ of habeas corpus,
seeking relief from the loss of eligibility to earn incentive gain-time following a
disciplinary proceeding. The district court dismissed his petitions on the ground
that he failed to make a substantial showing of the denial of a federal right. He
appealed the court’s decision, and we granted a certificate of appealability on one
2
issue: “Whether the district court erred in concluding that liberty interests were not
implicated by [petitioner’s] loss of the eligibility to earn incentive gain-time
because of his disciplinary report.”
“[S]tate statutes may create liberty interests that are entitled to procedural
protections of the Due Process clause [of the Fourteenth Amendment].” Vitek v.
Jones, 445 U.S. 480, 488, 100 S.Ct. 1254, 1261, 63 L.Ed.2d 552 (1980). A
petitioner states a cognizable claim that he has been denied due process of law if he
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). In Conlogue v. Shinbaum, 949 F.2d 378, 380
(11th Cir. 1991), we held that no due process liberty interest arose from the
possibility that a prisoner may receive a discretionary grant of incentive good time.
See also Francis v. Fox, 838 F.2d 1147, 1149 (11th Cir. 1988) (“when the statute is
framed in discretionary terms there is not a liberty interest created.”). The question
we must decide is whether Florida law, including regulations governing the
custody of prison inmates, creates a legitimate expectation that an inmate will earn
gain-time under the relevant circumstances, not solely on the basis of a state
decision-maker’s exercise of discretion. See Sultenfuss v. Snow, 35 F.3d 1494,
1499-1500 (11th Cir. 1994) (en banc) (parole context).
3
Florida law provides the following, with respect to incentive gain-time:
(1) The department is authorized to grant deductions from
sentences in the form of gain-time in order to encourage
satisfactory prisoner behavior, to provide incentive for
prisoners to participate in productive activities, and to
reward prisoners who perform outstanding deeds or
services.
(2)(a) The department shall establish for each prisoner
sentenced to a term of years a “maximum sentence
expiration date,” which shall be the date when the sentence
or combined sentences imposed on a prisoner will expire.
In establishing this date, the department shall reduce the
total time to be served by any time lawfully credited.
....
(3)(a) The department shall also establish for each
prisoner sentenced to a term of years a “tentative release
date” which shall be the date projected for the prisoner’s
release from custody by virtue of gain-time granted or
forfeited as described in this section. The initial tentative
release date shall be determined by deducting basic gain-
time granted from the maximum sentence expiration date.
Other gain-time shall be applied when granted or restored
to make the tentative release date proportionately earlier;
and forfeitures of gain-time, when ordered, shall be applied
to make the tentative release date proportionately later.
....
(4)(b) For each month in which an inmate works
diligently, participates in training, uses time constructively,
or otherwise engages in positive activities, the department
may grant incentive gain-time in accordance with this
paragraph. The rate of incentive gain-time in effect on the
date the inmate committed the offense which resulted in his
or her incarceration shall be the inmate’s rate of eligibility
to earn incentive gain-time throughout the period of
incarceration and shall not be altered by a subsequent
change in the severity level of the offense for which the
4
inmate was sentenced.
....
3. For sentences imposed for offenses committed on or
after October 1, 1995, the department may grant up to 10
days per month of incentive gain-time, except that no
prisoner is eligible to earn any type of gain-time in an
amount that would cause a sentence to expire, end, or
terminate, or that would result in a prisoner's release, prior
to serving a minimum of 85 percent of the sentence
imposed. For purposes of this subparagraph, credits
awarded by the court for time physically incarcerated shall
be credited toward satisfaction of 85 percent of the
sentence imposed. Except as provided by this section, a
prisoner shall not accumulate further gain-time awards at
any point when the tentative release date is the same as that
date at which the prisoner will have served 85 percent of
the sentence imposed. State prisoners sentenced to life
imprisonment shall be incarcerated for the rest of their
natural lives, unless granted pardon or clemency.
....
(7) The department shall adopt rules to implement the
granting, forfeiture, restoration, and deletion of gain-time.
Fla. Stat. § 944.275 (2009).
The Florida Administrative Code contains procedures concerning award of
incentive gain-time. Subsection (3) of Section 33-601.101 sets forth detailed
methods for evaluating a prisoner’s “institutional adjustment” as reflected in
“evaluations from security, work and program components.” Many factors are
considered, including hygiene, appearance of clothing, adherence to rules and
respect for others, maintenance of living quarters, work performance, and program
performance. Id.
5
Subsections (5) and (6) provide:
(5) Disqualifications. The following conditions will
disqualify an inmate for an award of incentive gain time
for the period stated.
(6) Inmates in disciplinary confinement status are not
eligible for a work/program rating even if assigned to
work or programs while in disciplinary confinement. . .
(a) Disciplinary or court action. An inmate is not eligible
to receive incentive gain time for the month in which
there is an infraction of the rules of the Department or the
laws of the State for which he is found guilty . . . Any
inmate who is found guilty of a disciplinary report on or
after April 21, 1996 and who is serving a sentence
imposed for an offense committed on or after October 1,
1995 shall be eligible to earn incentive gain time as
follows: . . .
2. For disciplinary reports in which the final approved
action is less than or equal to 30 days confinement or less
than or equal to 30 days loss of gain time, the inmate
shall not be eligible to earn incentive gain time for three
months following the month in which the disciplinary
infraction occurred. The three month period of
ineligibility shall not begin to run until the inmate is in
the department’s custody and would be otherwise eligible
to earn gain time but for the disciplinary action or new
offense.
3. For disciplinary reports in which the final approved
action is greater than 30 days confinement or greater than
30 days loss of gain time, or where the inmate was
convicted of an offense occurring while committed to the
Department of Corrections, the inmate shall not be
eligible to earn incentive gain time for six months
following the month in which the disciplinary infraction
6
or offense occurred. The six month period of ineligibility
shall not begin to run until the inmate is in the
department’s custody and would be otherwise eligible to
earn gain time but for the disciplinary action or new
offense.
F.A.C. 33-601.101 (2005).
Here, nothing in Florida law required the prison officials to grant petitioner
incentive gain-time, even in the absence of either the April 2005 or the May 2005
disciplinary decision. See Fla.Stat. § 944.275; F.A.C. 33-601.101. Indeed,
whether he would have actually been awarded incentive gain-time in any given
month depended upon a number of factors tied to his future behavior, and the
amount of the gain-time awarded, if any, was entirely within the discretion of the
Department of Corrections officials who were making these evaluations. See
Fla.Stat. § 944.275; F.A.C. 33-601.101; Francis, 838 F.2d at 1149. Thus,
petitioner cannot show that he had a legitimate expectation of gain-time. See
Sultenfuss, 35 F.3d at 1499-1500. Therefore, the loss of the eligibility to earn
incentive gain-time provided by Florida law is not a sufficient liberty interest to
invoke the protections of the Due Process Clause.
The judgment of the district court is, accordingly,
AFFIRMED.
7