                                                  [DO NOT PUBLISH]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



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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).



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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

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            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

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             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.




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