FLORIDA PRISON LEGAL

ers ectives
VOLUME 10

ISSN# 1091·8094

ISSUE 4

BACK FROM THE DEAD:
Revival of the Prison Health Code
by Mark Osterback
Were you aware that prior to 1996 living
conditions in the Florida Department of Corrections
(FDOC) were regulated by administrative rules enforced
by the Department of Health and Rehabilitative Services
(HRS)? Did you ·know that no such rules, enforceable in
the state's courts, now exist to regulate these living
conditions?
If you didn't, don't despair.
The
overwhelming majority of prisoners haven't a clue as to
the previous existence of Chapter 100-7, Flo~da
Administrative Code (l00-7). It was repealed, effective
.
February 8, 1996.
Recently, in Osterback Yo Agwunobi; 29
Fla.L.Weekly 01031 (Apr. 26, 2004), the Florida First
District Court of Appeal issued an important, albeit
somewhat unappreciated, opinion on the validity of this
repeal.· Unappreciated because most won't immediately
grasp what the court's. holding represents due chiefly to
ignorance of 100-7's former provisions and the far
reaching implications of their potential resurrection and
enforcement. Hopefully this article will serve to enlighten
prisoners and help them to understand the catalyst for
change 100-7 could be.
While in effect, 100-7 was a rule which the
FDOC hated anyone to know about. It's existence, even
among the more legal savvy prisoners, was not widely
known, because it appeared nowhere in FOOC rules, and

FAllILIES ADVOCA'I'llS PRISONERS

I

~

~

JULY/AUG 2004

it was not easy to locate. Whenever its existence was
discovered, and the authority of its provisions· invoked, the
FDOC would engage in all manners of shenanigans and
make up the most outlandish stories to keep from having
to obey them. Many times, the prisoner making such a
complaint was merely transferred to moot same. This is
because some of these provisions could cause massive
changes in the prison's operation, iffollowed.
.Two such provisions previously contained in 1007 bear closer scrutiny here as they are as relevant today as
they were when repealed. The first, 100-7.007(3) states:

"Sufjicie,,, space shall be provided in all living and
sleeping quarters to satisfy sanitary needs. Every bed, cot
or bunk shall have a clear space of at least twelve (12)
inches from the floor. There shall be a clear ceiling
height of not less than thirty-six (36) inches above any
mattress and there shall be a clear space ofnot less than
twenty-seven (27) inches between the top of the lower
mattress and the bottom of the upper bunk in a doubledeck facility. Single beds, cots or bunks shall be spaced
not less than thirty (30) inches laterally or end to end, and
double deck facilities shall be spaced not less than thirtysix (36) inches laterally or end to end. Sleeping
arrangements shall ensure a minimum 'of six (6) feet
between inmate heads. ..
The second, I00-7.005(7), states the following:

"In secure housing areas there shall be at least one
lavatory and one toilet in each cell. Dormitories and

PRIDE Under Investigation
6
Abridged View of Death Row
8
Post Conviction Comer
11
Lawsuit Challenges Inmate Account Fees
16
Supreme Court Actions
~
18
Notable Cases ..........................•................................•.............20

- - - - - - - - - - - - - FLORIDA PRISON LEGAL Perspectives

-------------

David ~ CoUins, Attorney at Law .
Fonner state prosecutor with more than 18 years ofcriminall.aw experience
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FLORIDA PRISON LEGAL

is more than double what Corrections Secretary James
Crosby receives to run the entire prison system.
Crosby, who as head of the prison system
automatically has a seat on PRIDE's board of directors,
has also questioned operations. "The problem I've had as
a board member is not understanding the relationships
between PRIDE as clearly defined in statute and the
various companies that have spun off using PRIDE money
primarily," said Crosby.
PRIDE's intercoMected companies have also
flummoxed state auditors, who complain it's impossible to
determine whether PRIDE has received any real return for
it's investment
What was once a simple string of prison factories
making shoes and clothes for prisoners or making license
plates, processing food to be served to prisoners, printing
forms, and making furniture for otQer government
agencies is now a collection of corporations with
overlapping interests that sometimes have nothing to do
with providing jobs for Florida prisoners.
• One PRIDE spinoff paid $2.5 million for
Northern Outfitters five years ago, hoping the
cold' weather clothing manufacturer would
expand to Florida. That hasn't happened.
Instead, while the company's goods are
stitched by prisoners, none of them are in
Florida. They are prisoners at Utah State
Prison.
• A citrus processing partnership between
PRIDE spin-off ITC and a subsidiary of South
Flonda citrus grower, Bernard Egan. owes
PRIDE more than $3.5 million from a failed
venture. And PRIDE is now stuck covering a
$2 million mortgage for the factory building
where the venture was to be housed at
Okeechobee Correctional Institution.
• A former PRIDE enterprise, turning
documents into digital files, was shifted to
another spinoff company that bids for and
receives contracts for jobs that are too
sensitive for prisoners, so nonprisoners are
hired.
• The north S1. Petersburg building where
PRIDE and its affiliates share offices was
sold, and the money went to the spinoff's
instead of PRIDE.
• Another venture includ!Xi private investments
by members of the PRIDE board and staff
(including CEO Davis) that would have
returned them personal profits, but the venture
failed.
Even before Bush called in his inspector generai,
an attempt was made to bring the PRIDE board to
heel. Minutes of the April board meeting show
that Bush's senior staff called on the entire board
to voluntarily resign and apply for reappointment.

PerspectJ.ves
Bush's staff also suggested that PRIDE's by-laws
be changed to allow the governor, not the bol1rd,
to pick the chairman. The 14-member board
refused. Though most are appointed by the
governor (12), each current board member has
been vetted, and approved by Davis and the rest of
the board before his or· her name ever gets sent to
the governor for appointment.
Davis and other PRIDE staff continue to
claim they have done nothing wrong. As the
1990s came to a close, Davis said, she and the
other board members had to adjust to the
inevitable: Offshore manufacturing, combined
with Bush's own push to privatize government
operations made it harder for PRIDE to get
customers. One of the biggest blows was the
2001 privatization of the state's prison food
services, which were outsourced to Aramark
Corporation. PRIDE, who had been acting as a
middleman to supply prisons food (at a large
markup for taxpayers) saw its revenue drop $30
million the following year. However, PRIDE's
latest annual report (2003) claims that last year
PRIDE had $65.3 million in sales and assets of
more than $38.7 million.
Regardless of the outcome of this latest in
a string of scandals at PRIDE going back to the
mid-1980s, the prisoners who work for the
company will continue to be the losers. While
PRIDE rakes in millions in (non) profit each year,
those who make it possible for the company to
cook up schemes to try to circumvent federal laws
intend~ to prohibit exploiting prisoner labor at
the expense of private sector jobs and for the
PRIDE CEO to bring in almost a quarter-milliondollar salary each year must try to subsist on third
world wages. '
PRIDE prisoner workers (never call them
employees, they might then be entitled to benefits
or even minimum wage, heaven forbid) earn only
$.20 to $.55 an hour, barely enough to survive
from one paycheck to another, having to buy
necessities from the privately-aperated prison
canteens at inflated prices. And nevermind that
Florida law requires a portion of any wages
prisoners may receive in prison to be set aside as
release reserves or that a portion of wages must go
to help with costs of the dependent children of
prisoners. PRIDE has no intention of ever paying
prisoners enough so those laws are complied with:
It's sad to see that many PRIDE prisoner
workers are fiercely loyal to the company, which
can be directly attributed to the pittance PRIDE
gives them when the vast majority of prisoners are
paid nothing. They also fail to understand that
although it is suppose to be PRIDE's primary

7

FLORIDA PRISON LEGAL

of 14 cells on each floor and 56 inmates on each wing.
Each row of cells has two showers.
Inmates are allowed outside two times a week for
two hours to exercise in one of four caged courtyards.
Inmates have a basketball and volleyball net as well as a
pull-up bar. Inmates enter one at a time and up to 30 are
allowed in the yard at one time.
Union Correctional Institution is about 10 miles
outside Starke and covers more than 98 acres and holds
1.950 inmates at different security levels. Death row
prisoners are in their own facility within the main unit. Of
the 364 inmates sentenced to death in Florida. 334 are
held at Union. Thirty are held at nearby Florida State
Prison, and one woman is held at Lowell Correctional
Institution. The death chamber is located at Florida State
Prison.
Florida administers executions by lethal injection
or electric chair at the death chamber. A three-legged
electric chair was constructed from oak by DOC personnel
in 1998 and was installed in 1999. It replaced the original
chair. which had been in use since 1923. In January 2000.
the Florida legislature passed a bill allowir,g lethal
injection as an alternative method of execution. Terry
Sims became the first inmate to die by lethal injection, on
February 23. 2000. Prisoners convicted after 2000 do not
have the option of electrocution. Before 1923, executions
were carried out by each county, usually by hanging.

PerspectIves - - - - - - - - - - - - - - •

526.422.35 - the cost to incarcerate someone
,on death row for a year.
By Race and Gender (as of 4/30/04):
• 229 white males.
• 125 black males.
• 10 others.
• I white woman.
• Oldest death row inmate: William Cruse. Jr.
(76)
• Youngest male on death row: Randy
Schoenwetter (23)
• Oldest inmate executed: Charlie Grifford (72)
(2/21/57)
• Youngest inmate executed: Willie Clay (16)
(12/29/41 )
• Longest prisoner on death row: Gary E.
A1vo.rd (30 yrs.) Ii

Database Technology Tracks
. Prisoners' Tattoos
Recently

the

Florida

Department

of

Law

~forcement impl~me?ted a new database complied by Ed

I

Rlcord that contains Information of over 372,644 tattoos
on current and former state prisoners.
.
With the database officials can identify the most
popular tattoos and their location. Law enforcement
.praise the technology because· the information, when
combined with other information, such as height, weight,
hair, and eye color, will·aid officers in their search for
possible crime suspects.
Ricord created the database after fielding numerous
inquiries about tattoos on criminal suspects.
For the record, the most popular tattoo among
Florida prisoners is the cross. "Mom" tattoos are favored
by 543 current and former prisoners. And 812 have
tattoos on their buttocks.
But only one has "Mom"
tattooed on his butt. a guy from Tampa. Florida. -

Death Row Milestones:
• First executed inmate - Frank Johnson was
the first inmate executed in Florida's electric
chair on October 7. 1924. In 1929 ~nd from
May 1964 to May 1979 there were no
executions in Florida.
• First woman executed - on March 30. 1998.
Judias "Judy" Buenoano,known as the "Black
Widow." became the first woman to die in
Florida's electric chair. On October 9. 2002,
serial killer Aileen Wuomos b~me the first
woman in the state to be executed by lethal
injection.
• The Executioner - a private citizen who is
paid $ 150 per execution to serve as the
executioner. State law allows for his or her
anonymity.
By the Numben:

•

12.01 years - the average length of stay on
death row.

•

28.2 years - the average age at time of

•
•
•

PRIVATE INVESTIGATORS

offense.
48.06 years - the average age of inmates on
death row.
43.67 years - the average age at time of
execution.
572.39 - the cost to incarcerate someone on
death row for a day.

DON O'CONNOR
DIRECTOR
TEL (813) 963-0900

15009 SOUTHFORK DR.
TAMPA, FL 33624
FAX (813) 962-1961

WE LOCATE MISSING WITNESS. WILL WORK FOR
YOU. ALL MAJOR CREDIT CARDS ACCEPTED.

9

FLORIDA PRISON LEGAL

POST CONVICTION
CORNER

Perspectlves

by Loren Rhoton, Esq.

Oftentimes when a criminal offense is charged, the specific date of the
offense can be pinpointed. In such a circumstance, it is easy to determine which
set of sentencing guidelines will apply to the offense. However, sometimes the
offense is alleged to have occurred within a period of time which spans several
sets of sentencing guidelines. When it is charged that a criminal offense occurred
over a period of time during which sentencing laws have changed, the defendant
should be sentenced under the more lenient version of the sentencing laws. Cairl
v. State, 833 So.2d 312 (Fla. 2nd DCA 2003). Sometimes in such a situation,
though, the court and defense counsel fail to recognize which set of guidelines
should actually apply. If attorney fails to have his client sentenced under the
proper set of guidelines in the above scenario, then the attorney's representation is
ineffective, the sentence should be vacated, and a new sentence should be imposed
under the proper, more lenient guidelines. See, Torres v. State, 2004 WL 1460706
(Fla. 3rd DCA, June 30 2004).
In Cairl v. State, 833 So.2d 312 (Fla. 2nd DCA 2003), the defendant, Charles
Cairl, was convicted of several sexual offenses relating to a person under the age
of sixteen. The trial court originally sentenced Cairl under the 1~95 sentencing
guidelines. Cairl was resentenced under the 1994 sentencing guidelines pursuant
to Heggs v. State, 759 So.2d 620 (Fla. 2000). However, the trial court denied
Cairl's claim that he should be sentenced under the most lenient guidelines in
effect during the time frame alleged in the information, an~, instead, applied the
sentencing guidelines in effect on the end date alleged in the information. Cairl at
312.
Cairl was charged with two single offenses alleged to have occurred on or
between January 1, 1991, and February 4, 1997. Id. Cairl argued that because the

an

dates straddled three different sentencing guideline time frames and because
neither the evidence nor the verdict pinpointed the date of the offenses, ~e was

entitled to be sentenced under the most lenient version of the three sentencing
guidelines. Said most lenient version was the one in effect between January 1,
1.991, and April 7, 1992. Id. The Second District Court of Appeal of Florida
11 - - - - - - - . . . . . . . ; . . . - - - - - - - -

_ _-"-

FLORIDA PRISON LEGAL

Perspectives - - - - - - - - - - - - - -

pursuant to Rule 3.800(a)]; and, Carpenter v. State, 870 So. 2d 955 (Fla. 1st DCA
2004)[Defendant raised facially sufficient claim for'reliefthat his sentence was in
excess of statutory maximum, where trial court record contained sentencing
guidelines from incorrect year which did not reflect year in which defendant
committed offense, and thus, postconviction court was required to grant relief or
attach portions ofrecord conclusively refuting claim of illegal sentence]. '
Thus, there are a number of ways in which one can raise a Rule of Lenity
issue after the Judgment and Sentence has become final. Each case is different
and one procedural vehicle may be more appropriate than another depending on
the circumstances. One will need to consider the specific facts of his or her case
to detennine which of the above addressed collateral attacks would be most
appropriate for his or her sentence. But, if a sentence has been improperly applied
due to a violation of the Rule of Lenity the problem possibly can, if addressed
properly, be corrected and a reduced sentence may result.

Loren Rhoton is a member in good standing with the Florida Bar
and a member ofthe Florida Bar Appellate Practice Section. Mr.
Rhoton practices almost exclusively in the postconviction/appellate
area afthe law, both at the State and Federal Level. He has assisted
hundreds ofincarceratedpersons with their cases and has numerous
written appellate opinions. II

Is This Thing On? ,
Recorded Interrogations
Most of the early arguments by civil libertarians
about recorded police interrogations appear to be gaining
steam. These advocates argue that a videotape or audio
recording of police interrogations would deter coercive
questioning and reduce the number of false confessions.
In addition, requiring probation and parole officers to
record interviews would eliminate questionable (if not
nonexistent) admissions to violations. Many prisoners
have been returned to prison based solely on alleged
admissions to crimes and technical violations. One such
prisoner, Mark O. Ellis, r~ains imprisoned on a 30-year
sentence based on such unverifiable testimony of
corrections officials, despite the fact the, official had in his
possession an audio recorder yet it was never used.
A new study has found that in the small number of
jurisdictions that record interrogations and interviews"law
enforcement has softened its position of utilizing such
equipment. They claim it enhances integrity. The study
makes a strong case that the states and localities that do
not require recorded interrogations now should start to do
so.

Although it seems to defy common sense, false
confessions are quite common, even in capital cases.
There are a wide array of reasons. For example, juveniles
are often manipulated into confessing.
Tricky
questioning, physical coercion, or' suggestions that a
confession is the best. way to avoid a lengthy sentence, or
the death penalty, persuades many individuals to admit to
crimes they did not commit. Oi, 'when such tactics fail,
officers will issue a statement that the individual made an
admiSSion when in actuality, no such admission occurred.
Only four states have decided to require recorded
interrogations or interview, though several other states are
consideriJuI such measures. The Center on Wrpngful
Convictions at Northwestern University recently surveyed
238 law enforcement agencies around the country that
currently record the questioning of felony suspects.' It
found that virtually every officer who had gave recorded
interviews a try was enthusiastically in favor of the
practiCe.
In summary, recorded interrogations are a
powerful tool for both sides of the criminal justice system.
Florida ~hould enact laws adopting this win-win practice.

•

13 - - - - - - - - - - - - - - - -

- - - - - - - - - - - - - - FLORIDA PRISON LEGAL

lock technique. Schembri, who was
appointed by Gov. Bush to take over
the troubled agency in June,- said he
intends to create a new mind-set at
the agency that is under fire behind
the death of two juveniles and
allegations of guards having sex with
locked up girls. More than 600 cases
of abuse or neglect have taken place
in state detention centers in the past
decade, with nearly two-thirds
.
occurring since 2000.
MS - The Mississippi DOC laid off
90 employees in June '04 in an effort
to save the state about $3.5 million a
year. The state has ahout 3,800
employees
overseeing
44,000

Perspectives - - - - - - - - - - - - - -

PA - In July '04 a federal appeals
court in Philadelphia ruled that
prisoner Daniel Decker who has been
held in solitary confinement for 31
years can remain there as long as
prison officials occasionally review
his stStus. Decker, an alleged white
supremacist who helped two other
prisoners' torture and kill a
corrections captain at a Pittsburgh
prison in 1973, is too volatile to be
released to the prison population,
claim prison officials. A prisoner's
rights group, The Institutional Law
Project, had sued on Decker's behalf,
saying his seemingly permanent
solitary
confinement
was
unconstitutional.

prisoners.
(NOTE: In contrast, Florida's DOC
has
over
25,000
employees
overseeing 80,000 prisoners - editor.

National - A new report released by
the American Bar Association during
June '04 says _ that get-tough
approaches to crime, such as
minimum
mandatory sentences,
generally don't work .and should be
abolished. The report documents
that existing requirements do not
account for _differences among
crimes and criminals, resulting in
more people behind bars for longer
terms without necessarily keeping
society safer.
National - According to a report
issued by Congress on July 7, 2004,
the nation's juvenile detention
centers have become warehouses for
an increasing number of mentally ill
youth, including many who have not
committed any crimes. The mentally
ill children are being sent to the
detention centers because they are
unable to receive mental health
services in their communities,
according to the - study by the
Democratic staff of the House
Government Reform Committee.

VT - In May '04 the Vermont

Legislature passed a law that
prohibits the VT DOC from housing
any prisoner in a cell where the
temperature is below 55 degrees.
Legislators noted it's a shame that
they had to pass a law to prohibit
something that should be common
sense, but felt it was necessary to
control such abuse by prison
officials. The law was a result of the
freezing confinement that Florida
interstate compact prisoner James
Quigley had been subjected to before
he allegedly committed suicide in a
VT prison in October of 2003. (See:
FPLP, Vol. 9 Iss. - 6, "Florida
Prisoner's Death in Vermont Sparks
Legislative Investigation. U)
WA - July 1:04, was the deadline
for Washinglon State prisoners to get
.rid
of their
sexually-explicit
magazines and books. WA prison
officials say they hope the ban will
reduce aggressive behavior among
prisoners and help in the treatment of
-sex offenders. .Prisoner officials will
further reduce prisoner aggression in
November when smoking _will be
banned in the state's prisons._ .

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---------------15 ----------------

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ FLORIDA PRISON LEGAL

Florida Cost of Incarceration
Statute Constitutional,
But Defenses Appear
Viable for Some
by Glenn Smith
In Goad v. Florida Department of Corrections,
845 So.2d 880 (Fla. 2003), the Florida Supreme Court
resolved district courts of appeal conflict to find -that §§
960.297 and 960.293, Fla. Stat., which create a cause of
action for "the state and its local subdivisions" to collect
damages from criminal offenders for their costs of
incarceration, could be applied to those convicted before
the statutes' July I, 1994, effective date because those
sections "do not violate the constitutional provisions
against ex post facto laws, nor...the right to substantive
,
due process." Goad at 881.
Previous challenges to the constitutionality of the
statute (the enactment encompasses §§ 960.29 - 960.298,
Fla. Stat.) have also failed. Ilkanic v. City of Fort
Lauderdale, 705 So.2d 1371 (Fla. 1998) (finding §
960.292(b)(3), Fla. Stat., does not violate substantive due
process or equal protection and that the lien provisions of
§§ 960..292 and 960:294, Fla. Stat.; do noi violate
procedural due process, but "no such lien exists as to such
homestead property," citing Article X, § 4, Fla. Const..)
However, in a little known decision out of the
Nineteenth Judicial Circuit Court, Okeechobee County,
Florida, in Florida Department of Co"ections v.
Jacobson. Case No. 2001-CA-210, on May 10. 2002,
Circuit Court Judge Burton C. Conner found that where
the defendant was convicted of a life felony in July 1985.
and § 960.293(2)(a), FI~. Stat., provides for one liquidaied
sum of $250,000.00 in damages for those convicted of a
capital or life felony. that the claim of the FDOC ripened
and became liquidated, and the limitations period provided
by § 95.1l(3)(f), Fla. Stat., governing actions founded on
statutory liabili~ began to run on the date the statute went
into effect. Since the FDOC's action against Jacobson
was ,not filed within the four-year limitations period ~t was
barred, Judge Conner held. The bar. however. would not
have applied had the claim aga~nst Jacobson been based
upon the liquidated damage amount of $50.00 per day of
an offender's sentence for offenses other than· capital or
life felony (§ 960.293(2Xb). Fla. Stat.). (In Florida,
capital and life felonies for which specific sentencing
parameters arc prescribed pursuant to § 775.082(1) and
3.(a), Fla. Stat..) The decision in Jacobson was not
appealed by the FDOC.
It has been the practice of "the state and its local
subdivisions" not to file an action for costs of
incarceration until an offender files a suit against the state,
a local subdivision, or individuals acting under color of
state law. While the decision in Ha!llcins v. Finnel, 964,

,

PerspectIVes - - - - - - - - - - - - - - -

F.2d 8~3. 866 (81b Cir. 1992).(finding that "section 1983
preempts the Missouri Incarceration Act as it is applied in
this case...the Act is invalidated by the Supremacy
Clause") provides a legal basis against seizure of
monetary awards under a 42 USC § 1983 civil rights
action, defenses other than that delinated in Jacobson have
yet to be fully litigated.
However, in another interesting case, Smith v.
Florida Departmem of Corrections, filed February 23,
1998, in the Nineteenth Judicial Circuit Court, Martin Co.,
under Florida's Tort Claims Act, the assistant attorney
defending the FDOC filed a counterclaim for cost of
incarceration lien which was mailed on June 12, 2002.
only a few days after Smith had rejected a ridiculously
low monetary settlement offer on May 28, ·2002. The
counterclaim was filed even though Judge Conner had just
ruled in Jacobson a couple of weeks earlier (which the
same attorney general's office had prosecuted) and Smith
was
similarly situated to Jacobson in regard to the
application of the statute of limitations, making Jacobson
stare decisis regarding the issue in Smith in the Nineteenth
Circuit.
Before discovering Jacobson. Smith had moved to
dismiss the FDOC's counterclaim for retaliation in
violation of his right to access to the courts. That defense
appeared to have some merit from case law. In Re
Apportionment Law, Senate Joint Res. No. 1 305, 263
So.2d 797, 808 (Fla. 1972). the Florida Supreme Court
interated "that a sta~ute may be valid as applied to one set
of facts, though invalid as applied to another set of facts,"
in regard to the constitutionality of a statute. And in
Crawford EI v. Britton, 523 U.S. 574. 588 n. 10. 118 S.Ct.
1584. 1592 n. to (1998), the U.S. Supreme Court
explained that "[t]he reason ,why...retaliation offends the
Constitution is that it threatens to inhibit the exercise of a
protected right." Thus, in claiming retaliation as a defense
to a counterclaim for a cost of incarceration lien,
discovery would be a valuable tool to compile information
about the actual application of the costs of incarceration
cause of action to offenders litigating against "the state
and· its local subdivisions" compared to the total number
of offenders subject to such possible action.
When Smith got a hearing on his amended motion
to dismiss the FDOC's counterclaim (citing Jacobson) on
January 9. 2003. the assistant attorney general announced
to the Court that the FDOC was withdrawing its
counterclaim. -

Prisons Fueling Rural Economies
So many prisons have been built in rural areas in
recent· years and so many prisoners housed in them that
the impact is showing up in census figures, and in local,
state, and federal aid allocations based on those census
figures. According to a study released April 29. '04, by

17------------------

FLORIDA PRISON LEGAL

,ring finality to state judgments.
The question in Haley's case was whether a
orisoner who missed a deadline or was otherwise
procedurally barred from bring in a claim could still get a
federal hearing by assertiJ1g "actual innocence." Haley
claimed his sentence was wrongfully increased based on a
crime that did not qualify under a habitual offender·
statute.
Legal analysts watched intensely to see whether
the court would rule in Haley's favor and give prisoners
who are sentenced under repeat offender statutes a new
way to challenge their cases.
But the majority opted not to address the key
question. Lead by Justice Sandra Day O'Connor, the
Court said it would be better to send Haley's case back to
be reheard on his separate claim of ineffective trial
counsel. O'Connor said the court should avoid creating
exceptions to rules that in most cases bar federal judges
from second-guessing state court judgments.
On June 24, 2004, the U.S. Supreme Court issued
decisions in two cases that are progeny of the high Court's
landmark decision in Apprenpi v. New Jersey, 530 U.S.
466 (2000). In Apprendi it was ~eld that. "Other than the
fact of a prior conviction. any fact that increases the
penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond
a reasonable doubt." Since Apprendi was decided it has
generated a signiticant body of litigation testing the limits
of the rule established in the case. and whether- the rule
applies retroactively to cases that became final prior to the
rules in Apprendi being established.
In the first June 24 decision the Supreme Court
rejected a circuit court of appeals decision that had
invalidated an Arizona death-sentenced prisoner's
sentence by retroactively applying the rule established in
Apprendi, [d., and as applied to death penalty cases in
Ring v. Arizona, 536 U.S. 584 (2002). In a 5 to 4 vote. the
Supreme Court held that because the conviction and
sentence of the prisoner, Warren Summerlin, had already
become tinal on direct review before Ring was decided
that Ring does not apply in his case.
At .issue in Ring was whether juries, rather than
judges, must make the final· decision on whether a
convicted murderer should receive a death sentence or
prison term. The Ring Cpurt had held that the Sixth
Amendment right to a jury extends to the sentencing phase
of a capital murder case, and unless a defendant waives
that Sixth Amendment right. a death sentence meted out
by a judge rather than a jury would be unconstitutional.
However, writing for the majority in· the
Summerlin case. Justice Antonin Scalia said that while the
right to a jury trial is fundamental, "it does not follow that.
when a criminal defendant has had a full trial and one
round of app~ls in which the state faithfully applied the
Constitution as we understood it at the time. he may .
nevertheless continue to litigate his claims indefinitely in
hopes that we will one day have a change of heart."
''0

Perspectives - - - - - - - - - - - -

_

Thus, the Court held that since SUmnlerlin had exhausted
all direct appeals before Ring was decided, and since the
rule established in Ring was procedural rather than
substantive because it only regulates the "manner of
determining" a defendant's culpability, that Ring did not
apply retroactively to Summerlin. This. decision dashed
the hopes of at least 121 death-sentenced prisoners in five
states who had hoped the justices would find that Ring
would apply retroactively. See: Schriro v. Summerlin, 17
Fla.L.Weekly Fed. S425 (2004).
In the second June 24 decision ·the Supreme Court
held that the rule established in Apprendi applied in a plea
bargain case where the facts admitted in the plea
supported a maximum sentence of 53 months under
~ashington state guideline sentencing but the judge
Imposed a 90 month sentence, based on the pled facts,
after finding that the defendant, Ralph Blakely, acted with
deliberate cruelty, a· statutorily enumerated ground for
departing from the standard guideline sentencing range.
Overturning a lower appeals court decision that had
rejected Blakely's claim that such sentencing departure
deprived him of his constitutional right to have a jury
determine beyond a reasonable doubt all facts essential to
his sentence, the Supreme Court held that because
Washington law requires an exceptional sentence to be
based on factors other than those used i.n computing the
standard range sentence, that Apprendi did apply and that
a jury would have had to found that Blakely acted with
"deliberate cruelty" in order for an upward departure to be
constitutional.
The decision in the Blakely case resulted in strong
dissent from the minority justices who opined the decision
would wreak havoc on courts nationwide and sidetrack
efforts to use sentencing guidelines to make criminal
punishments more uniform. Immediately following the
decision it did create a furor among some state and federal
prosecutors who claimed it will create turmoil in the
criminal justice system. Most notably the federal system,
whi~h uses guideline sentencing, could be impacted by the
decision. Justice Sandra Day O'Conner wrote that at leaSt
10 states have sentencing guidelines that could be
affected, including Florida. See: Blakely v. Washington,
17 Fla.L.Weekly Fed. S430 (2004).
[Note: On July 21, 2004, the U.S. Justice Department
stated that the Blakely decision must be clarified as it has
thrown federal sentencing into uncertainty and disarray.
The high Court was asked to return before its usual
October term opening to distinguish the federal guidelines
from Washington state's since some federal judges have
already questioned the federal guidelines' constitutionality
by applying Blakely.] •

FLORIDA PRISON LEGAL

violating the terms of control release
to which he expressly agreed.
Gaskins filed a petition for a writ of
ceniorari to the First' District Court
of Appeals and again was d~nied any
relief. Subsequently, he filed the
same argument pursuant to 28 U.S.C.
section 2254 to the federal district
coun which rejected it.
Gaskins on appeal to the
United States Coun of Appeals, the
II III Circuit ruled that to fall within
the ex post facto prohibition a law
must be retrospective and it must
disadvantage the offender affected by
it by altering the definition of
criminal conduct or increasing the
punishment for the crime. Neither
the Ex Post Facto chiuse nor any
other pan of the' Constitution
prevents a state from permitting a
prisoner to bargain away earned
release credits and GaskinS did just
that. He bargained away any right he
had earned earlier under other
statutes and forfeited under the terms
ofthose 'earlier statutes.
When a prisoner violates the terms of
his controlled release the Parole
Commission is authorized to revoke
all gain-time, whether it be CR
credits, PC credits, or any other gaintime credits possibly ~ived under
other statutes.
Florida Statutes
section 944.28( I) 311d section
947.141 (6).
Gaskins had voluntarily
elected to accept the early release
program each time he was allowed to
do so. In doing so, he agreed to all
the terms and conditions therein.
including its
broad forfeiture
provisions. - a.s.

Dill v. Holl, 17. FIa.L.Weekly Fed.
C632 (11 III Cir. 6/3/04
The 11 th Circuit granted
David Dill, Jr., an Alabama State
prisoner, a certificate of,appealability
on two issues: (l) whether a state
prisoner proceeding under 28 U.S.C.
sec. 2241 must exhaust available
state remedies, and (2) if so, what
steps must be taken in challenging a
parole-revocation
decision
to

properly satisfy the exhaustion
requirement.
Dill's argument in this case
was that a state prisoner using
section 2241 to attack a parole
revocation' need not satisfy the
exhaustion requirement of 28 U.S.C.
sec. 2254. He further argued that it
was the State Board of Pardons and
Paroles' decision to revoke his parole
and return him back behind bars, not
pursuant to the judgment of a state
cou~ but to that of a decision by an
administrative body.
.
The 11 1h Circuit explained,
although the statutory language
within section 2241 itself does not
contain a requirement that a
petitioner exhaust state remedies, it
has been held in Medberry v Crosby,
351 F.3d 1049 (llllJ Cir. 2003), that
the requirements of section 2254.
including exhaustion of state
remedies, applies to a subset of
petitioners
to
whom' section
2241(c)(3) applies (which DiU used
to seek his habeas relief) regarding
those who are in custody pursuant to
the judgment of a State court.
As explained by Judge Black, in
Medberry, a writ of habeas corpus is
a single post conviction remedy
principally governed by two different
statutes, section 2241 and section
2254, with the second of those
statutes serving to limit authority
granted in that of the first one. In
other words, a petition seeking
habeas relief under section 2241 is
nevertheless subject to section
2254's exhaustion requirement if the
petitioner is in custody pursuant to
the judgment ofa Sta~e court.
In Dill's case, ·he was in
custody pursuant to his original state
conviction and sentence, despite the
fact he was placed back in custody
resulting from an administrative
proceeding of an executive branch
agency instead of a court.
As found in Jones v.
Cunningham, 371 U.S. 236, 243
(1963), a prisoner who is placed on
parole is still in custody under the
unexpired pan of his state sentence
for purposes ofthe habeas statute:

21

...

Perspectives - - - - - - - - - - - - The steps that should be
taken to properly satisfy the
exhaustion requirement in the type of
situation as in this case is shoWn in
section2254 '(b)(I)(A) and which are
the ones available in the courts of the
State. In 0 'SuI/ivan v Boerckel, the
United States Supreme Coun
explained that a state prisoner must
give the state courts one full
opportunity
to
resolve
any
constitutional issues by invoking one
complete round of the' State's
appellate review process.
A
complete round of the state appellate
process
includes . discretionary
appellate review when that review is
pan of the ordinary appellate review
procedure in the state.
Because Dill failed to 'pursue
any state remedy to the fullest extent
(or even partially) he did not meet
section 2254(bXIXa)'s exhaustion
requirement.
Therefore, the IIIh
Circuit affinned the district court's
dismissal of his petition for such
failure.
[Note: Also see, Thomas v.
Crosby,17 Fla.L.Weekly CS76 (lllll
Cir. 5/26/04), where it is discussed
about James Dwight Thomas'
application for writ of habeas corpus
filed pursuant to 28 U.S.C. sec. 2241
in the United States District Court for
the Northern District of Florida could
be converted into one purSuant to 28
U.S.C. sec. 2254 by the District
Court. - a.s.]

u.s. DISTRICT COURTS
Faison v. Guerra. 17 FIa.L.Weekly
Fed. 0626 (N.D. Fla. 3/15/94)
The underlying issue in this
case is that prisoner Matthew Levi
Faison filed a civil rights complaint
and requested to proceed in forma
pauperis under 28 U.S.C. section
1915 even though he was aware that
he had three strikes against him for
filing prior frivolous civil claims in a
United States Court.
As it is plainly stated under
28 U.S:C. section 1915(g), a prisoner

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