          Case: 18-12156    Date Filed: 06/17/2019   Page: 1 of 6


                                                        [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-12156
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:16-cv-23395-CMA



MICHAEL SWAIN,

                                                          Petitioner-Appellant,

                                   versus

FLORIDA COMMISSION ON OFFENDER REVIEW,

                                                         Respondent-Appellee,

TENA M. PATE,
Chairperson,

                                                                    Respondent.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                              (June 17, 2019)
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Before WILLIAM PRYOR, JILL PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

      Michael Swain, a Florida prisoner, appeals pro se the denial of his petition

for a writ of habeas corpus. 28 U.S.C. § 2254. Swain argues that the Florida

Commission on Offender Review violated his right to due process under the Fifth

and Fourteenth Amendments by breaching a regulation that barred it from denying

parole based on criminal charges of which he had been acquitted. Because our

precedent establishes that the failure of the Commission to “abide by its own rules

and regulations does not allege a constitutional violation,” Jonas v. Wainwright,

779 F.2d 1576, 1578 (11th Cir. 1986), and, in any event, the record controverts

Swain’s contention that the Commission violated its regulation, we affirm.

      Swain challenged the denial of parole arising from his convictions in 1976 in

a Florida court for one count of breaking and entering a dwelling with assault, two

counts of armed sexual battery, and two counts of robbery and his sentence of three

terms of life imprisonment and two terms of 99 years of imprisonment. After a

state appellate court summarily affirmed Swain’s convictions and sentence, Swain

v. State, 341 So. 2d 305 (Fla. Dist. Ct. App. 1976), the Commission set Swain’s

presumptive parole date as June 12, 2001. Later, the Commission adjusted the

presumptive parole date to March 6, 1999.




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      Swain attached to his federal petition a copy of a letter that the State

Attorney’s Office submitted to the Commission protesting Swain’s release in 1999.

In the letter, the state prosecutor described the facts underlying Swain’s sexual

battery convictions and the facts of three other cases in which Swain was

implicated based on his fingerprints and a statement to the police. In the three

cases, Swain allegedly broke into homes armed with a knife and sexually assaulted

its female occupants. The prosecutor stated that Swain had been acquitted in one of

the three cases and that the state had nol prossed the other two cases because “the

State and the victims were satisfied the community would be protected in light of

[Swain’s] sentence” in 1976.

      Swain also attached to his petition the decision of the Commission in 1999

to suspend Swain’s presumptive date for parole. The Commission found that

Swain’s “offense involved the use of a firearm or dangerous weapon,” his “offense

of Sexual Battery and Robbery, . . . [was] particularly heinous and cruel,” and his

victims had suffered severe trauma. The Commission also found that Swain’s

release posed an “unreasonable risk to others”; his mental health treatment

evidenced that he was “in need of continued observation and treatment in a

structured environment”; his “parole risk [was] extremely poor” on account of his

disciplinary reports for fighting and for attempting to incite a mutinous act; and “a

significant risk existed . . . of [Swain engaging in] future criminal behavior that


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[might] involve crimes of sexually deviant behavior . . . hazardous to others.”

Based on those findings, the Commission “conclude[d] that [Swain’s] conviction

. . ., his aggressive and assaultive behavior which [was] reflected in his sexually

deviant-type convictions and disciplinary reports . . ., [and] his lack of adequate

treatment . . . [for] behavior that resulted in his commitments . . . demonstrated his

unsuitability for community based supervision and [were] not conducive indicators

for successful parole.”

      In response to Swain’s federal petition, the Commission argued that Swain

had no right to release on parole before the expiration of his sentence; that his

argument about the violation of a regulation was foreclosed by Jonas, 779 F.2d at

1578; and that it had, in any event, complied with applicable regulations when

denying him parole. The Commission submitted copies of its decisions in 2013 and

in 2015 that left “intact the suspension of [Swain’s] assigned Presumptive Parole

Release Date of 3/6/1999.” In its 2013 decision, the Commission stated that it was

denying Swain parole based on his “lack of program participation since [his] last

review” and “[t]he serious nature of the offense,” including his “[u]se of a knife,”

the “[p]hysical and psychological trauma to [his] victim,” his “[m]ultiple separate

offenses,” and the “[u]nreasonable risk” he posed to society. In 2015, the

Commission denied Swain parole based on the reasons identified in its 2013




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decision and “[t]he insufficient programming [he had] completed to assist with

successful re-entry into society since the last review.”

       The district court denied Swain’s petition. The district court ruled that, given

“[t]here is no constitutional right to parole in Florida” and the decision to grant

parole rests in the “discretion of the Commission,” Jonas, 779 F.2d at 1577, Swain

had to prove the Commission knowingly relied on false information, Monroe v.

Thigpen, 932 F.2d 1437, 1442 (11th Cir. 1991), but had failed to do so. The district

court also ruled that Swain’s argument about the Commission allegedly violating

its regulation was foreclosed by Jonas, id., and it rejected his argument for relief

based on Joost v. United States Parole Commission, 698 F.2d 418 (10th Cir. 1983),

in which the court concluded that the denial of parole based on murder charges for

which the petitioner had been acquitted would “violate[] the Commission’s own

regulations unless [it possessed] ‘reliable information’ of guilt not introduced at

trial . . . .” Id. at 419. The district court concluded that Joost “conflict[ed] with . . .

Jonas” and issued a certificate of appealability to address “whether [the] reliance

on charges for which [Swain] was acquitted—in violation of regulations governing

the Commission—constitutes a violation of [his] due process rights.”

       We review de novo the denial of a petition for a writ of habeas corpus.

Wilson v. Warden, Ga. Diagnostic Prison, 898 F.3d 1314, 1320 (11th Cir. 2018).




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      Swain concedes that his argument that the Commission violated its

regulation in denying him parole is foreclosed by binding precedent. In Jonas, we

held that the failure of the Commission to “abide by its own rules and regulations

[did] not allege a constitutional violation.” 779 F.2d at 1578. We are bound to

follow Jonas “unless and until [it is] overruled or undermined to the point of

abrogation by the Supreme Court or by this Court sitting en banc.” Hylor v. United

States, 896 F.3d 1219, 1224 (11th Cir. 2018) (quoting United States v. Deshazior,

882 F.3d 1352, 1355 (11th Cir. 2018)), cert. denied, 139 S. Ct. 1375 (2019).

      Even if we were not bound by Jonas, we would still affirm the denial of

Swain’s petition because the Commission did not violate its regulation. The record

establishes that the Commission denied Swain parole based on the “particularly

heinous and cruel” nature of the crimes for which he had been convicted, his use of

a knife during those crimes, the trauma inflicted on his victims, the “unreasonable

risk” he posed to others, and his lack of participation in programs prerequisite to

his release. Swain submitted no evidence that the Commission denied him parole

based on criminal charges of which he had been acquitted.

      We AFFIRM the denial of Swain’s petition for a writ of habeas corpus.




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