           Supreme Court of Florida
                                     ____________

                                     No. SC16-1478
                                     ____________

                                ROBERT E. BANKS,
                                    Petitioner,

                                            vs.

                                JULIE L. JONES, etc.,
                                    Respondent.

                                 [December 21, 2017]

QUINCE, J.

       This case is before the Court for review of the decision of the First District

Court of Appeal in Banks v. Jones, 197 So. 3d 1152 (Fla. 1st DCA 2016). The

district court certified that its decision is in direct conflict with the decision of the

Fifth District Court of Appeal in Holland v. State, 791 So. 2d 1256 (Fla. 5th DCA

2001), on the issue of whether a petition for a writ of habeas corpus is the proper

vehicle by which to seek release from close management. We have jurisdiction.

See art. V, § 3(b)(4), Fla. Const.
                                       FACTS

      Robert E. Banks was serving a thirty-year sentence for a robbery conviction.

Banks, 197 So. 3d at 1156. After receiving a disciplinary report for a spitting

incident, the Department of Corrections adjudicated Banks guilty for violating

department rules, placed him in disciplinary confinement, and revoked 364 days of

gain time in addition to issuing a referral reassigning him to the “Close

Management I” housing classification. Id.

      Banks first challenged the referral with the Department, which upheld the

decision. Banks then filed a petition for a writ of habeas corpus with the Eighth

Judicial Circuit Court. Id. The Eighth Circuit denied relief, stating that Banks

failed to demonstrate that he was entitled to relief. Id. at 1157. Banks filed a

petition for a writ of certiorari in the First District, which ordered the Department

to show cause why the writ should not be granted. Subsequently, the First District

determined to hear the case en banc to determine whether it should recede from its

prior precedent. Id.

      Reviewing Banks’ claim, the First District stated: “Most pertinent to our

decision here is the initial question of whether prisoners in Florida have a protected

liberty interest in remaining in the general population, thus necessitating a

determination of whether a decision removing a prisoner from the general

population for reassignment to Close Management implicates due process


                                         -2-
requirements.” Id. at 1159 (citing Sandin v. Conner, 515 U.S. 472 (1995)). The

First District reasoned that “[i]f a liberty interest is not at stake, judicial review . . .

would be more appropriately considered as an appeal of an administrative decision

rather than a claim that a person is being illegally detained.” Id. Although the

First District recognized that the Sandin Court “left open the possibility that states

could create liberty interests which triggered due process protections,”1 the court

nevertheless reasoned that “Sandin clearly announced that any prison regulation

which did not impose an atypical hardship on state prisoners would not implicate

due process protections.” Id. at 1160 (citing Sandin, 515 U.S. at 481). So

reasoning, the First District announced its decision to “recede from prior

decisions . . . allow[ing] Close Management decisions to be challenged by writ of

habeas corpus.” Id. at 1162. Relying on our decision in Bush v. State, 945 So. 2d

1207, 1210 (Fla. 2006), the First District reasoned that because prisoners

challenging their assignment to close management were not seeking immediate

release, the appropriate vehicle for their claims is a petition for a writ of

mandamus. Banks, 197 So. 3d at 1163. Therefore, the First District determined:

“[B]ecause habeas corpus review of such claims does not accord the proper

deference due the Executive Branch . . . we recede from prior decisions of this



     1. Id. at 1160 (citing Board of Pardons v. Allen, 482 U.S. 369 (1987);
Washington v. Harper, 494 U.S. 210 (1990); Vitek v. Jones, 445 U.S. 480 (1980)).


                                            -3-
court which hold that challenges to Close Management housing assignments may

be asserted by petition for writ of habeas corpus.” Banks, 197 So. 3d at 1155

(citing Magwood v. Tucker, 98 So. 3d 725 (Fla. 1st DCA 2012); Kendrick v.

McNeil, 6 So. 3d 657 (Fla. 1st DCA 2009); Thompson v. Dugger, 509 So. 2d 391,

392 (Fla. 1st DCA 1987)).

      The First District certified conflict with Holland.2 Banks sought review in

this Court, which we granted.




      2. The decision in Holland, in its entirety, states:

             Holland appeals from an order of the circuit court, which
      denied his petition for a writ of habeas corpus. In the petition,
      Holland sought to compel the Secretary of the Florida Department of
      Corrections to release him from “close management,” and return him
      to the general population of the prison where he is incarcerated (North
      Florida Reception Center). The circuit court found that Holland had
      been placed in “close management” because of a long series of
      disciplinary infractions.
             In this petition, Holland has raised no issue concerning
      harassment, lack of due process, failure of the state to comply with its
      own rules regarding “close management,” or other grounds, which
      would provide a basis to grant his release from “close management.”
      Under these circumstances, as he is legally confined in prison, the writ
      was properly denied.

Holland, 791 So. 2d at 1257 (footnotes omitted).




                                         -4-
                                    MOOTNESS

      The Department argues that because Banks has been released from close

management and transferred to a facility that does not house prisoners in close

management quarters, the case is moot and this Court should exercise its discretion

and discharge jurisdiction. While the Department is correct that Banks, himself,

does not have a current controversy, the First District’s decision is broader than

Banks’ dispute. Because the First District receded from over three decades of

precedent and circuit courts who would ordinarily review the habeas petitions are

bound by its decision, our determination of the certified conflict is necessary for

guidance to our trial and appellate courts. Therefore, we decline the State’s offer

to discharge jurisdiction. See, e.g., Pino v. Bank of New York, 76 So. 3d 927, 927-

28 (Fla. 2011) (discussing a certified question of great public importance and

stating that the question “transcends the individual parties to this action because it

has the potential to impact [the courts] throughout this state and is one on which

Florida’s trial courts and litigants need guidance.”); Williams v. State, 957 So. 2d

600, 601 (Fla. 2007) (retaining jurisdiction in a certified conflict case despite

mootness); State v. Matthews, 891 So. 2d 479, 483 (Fla. 2004) (retaining

discretionary certified conflict jurisdiction despite Matthews’ release from prison

because “the question before this Court is of great public importance and is likely

to recur”) (citing Holly v. Auld, 450 So. 2d 217, 218 n.1 (Fla. 1984)); Enterprise


                                         -5-
Leasing Co. v. Jones, 789 So. 2d 964, 965 (Fla. 2001) (“Although the issue

presented in this appeal may be moot as it relates to these parties, the mootness

doctrine does not destroy our jurisdiction when the question before us is of great

public importance or is likely to recur.”) (citing Gregory v. Rice, 727 So. 2d 251,

252 n.1 (Fla. 1999)); N.W. v. State, 767 So. 2d 446, 447 n.2 (Fla. 2000) (retaining

discretionary certified conflict jurisdiction after the appellant’s community control

expired because “this case presents a controversy capable of repetition, yet evading

review [and] should be considered on its merits.” (citing Kight v. Dugger, 574 So.

2d 1066 (Fla. 1990)).

                                   DISCUSSION

      The issue before this Court is whether an inmate may petition for a writ of

habeas corpus to challenge his or her placement in Close Management I (CMI) or

whether said inmate must file a petition for a writ of mandamus. Because we find

that an inmate may have a limited liberty interest in being housed with the general

population as compared to CMI depending on the duration of reassignment, we

hold that a petition for a writ of habeas corpus remains the correct mechanism by

which to challenge a reassignment. We therefore quash the decision of the First

District to the extent it holds otherwise and adopt the reasoning of Judge Wolf’s

concurring in part and dissenting in part opinion.




                                        -6-
      The United States Supreme Court’s 1983 decision in Hewitt v. Helms, 459

U.S. 460 (1983), upon which the First District previously relied, concerned a

prisoner’s complaint that the Pennsylvania State Correctional Institution at

Huntingdon violated his Fourteenth Amendment due process rights by confining

him to administrative segregation within the prison after he assaulted two guards.

Id. at 462-63. The Hewitt Court indicated:

            While no State may “deprive any person of life, liberty, or
      property, without due process of law,” it is well settled that only a
      limited range of interests fall within this provision. Liberty interests
      protected by the Fourteenth Amendment may arise from two
      sources—the Due Process Clause itself and the laws of the States.

Hewitt, 459 U.S. at 466 (citing Meachum v. Fano, 427 U.S. 215, 223-227 (1976)).

The Court then opined, “While there is little question on the record before us that

[Hewitt’s] confinement added to the restraints on this freedom, we think his

argument seeks to draw from the Due Process Clause more than it can provide.”

Id. at 467 (footnote omitted). The Hewitt Court recognized:

             We have repeatedly said both that prison officials have broad
      administrative and discretionary authority over the institutions they
      manage and that lawfully incarcerated persons retain only a narrow
      range of protected liberty interests. As to the first point, we have
      recognized that broad discretionary authority is necessary because the
      administration of a prison is “at best an extraordinarily difficult
      undertaking,” Wolff v. McDonnell, [418 U.S.] at 566, and have
      concluded that “to hold . . . that any substantial deprivation imposed
      by prison authorities triggers the procedural protections of the Due
      Process Clause would subject to judicial review a wide spectrum of
      discretionary actions that traditionally have been the business of
      prison administrators rather than of the federal courts.” Meachum v.


                                         -7-
      Fano, [427 U.S.] at 225. As to the second point, our decisions have
      consistently refused to recognize more than the most basic liberty
      interests in prisoners. “Lawful incarceration brings about the
      necessary withdrawal or limitation of many privileges and rights, a
      retraction justified by the considerations underlying our penal
      system.” Price v. Johnston, 334 U.S. 266, 285 (1948). Thus, there is
      no “constitutional or inherent right” to parole, Greenholtz v. Nebraska
      Penal Inmates, 442 U.S. 1, 7 (1979), and “the Constitution itself does
      not guarantee good-time credit for satisfactory behavior while in
      prison,” Wolff v. McDonnell, [418 U.S.] at 557, despite the
      undoubted impact of such credits on the freedom of inmates. Finally,
      in Meachum v. Fano, [427 U.S.] at 225, the transfer of a prisoner from
      one institution to another was found unprotected by “the Due Process
      Clause in and of itself,” even though the change of facilities involved
      a significant modification in conditions of confinement, later
      characterized by the Court as a “grievous loss.” Moody v. Daggett,
      429 U.S. 78, 88 n. 9 (1976). As we have held previously, these
      decisions require that “[a]s long as the conditions or degree of
      confinement to which the prisoner is subjected is within the sentence
      imposed upon him and is not otherwise violative of the Constitution,
      the Due Process Clause does not in itself subject an inmate’s
      treatment by prison authorities to judicial oversight.” Montanye v.
      Haymes, 427 U.S. 236, 242 (1976). See also Vitek v. Jones, 445 U.S.
      480, 493 (1980).
Hewitt, 459 U.S. at 467-68 (emphasis added). The Hewitt Court reasoned, “It is

plain that the transfer of an inmate to less amenable and more restrictive quarters

for nonpunitive reasons is well within the terms of confinement ordinarily

contemplated by a prison sentence.” Id. at 468.

      The Hewitt Court’s analysis did not end there, however. Instead, the Court

determined that a State could create a liberty interest with enactment of regulations

governing the administration of state prisons. And, under such an enactment, when




                                        -8-
the State uses language that is mandatory in nature, the process afforded an inmate

must satisfy the minimum requirements of the Due Process Clause. Id. at 469-72.

      In 1995, the United States Supreme Court reconsidered its ruling in Hewitt.

See Sandin v. Conner, 515 U.S. 472, 474 (1995) (“We granted certiorari to

reexamine the circumstances under which state prison regulations afford inmates a

liberty interest protected by the Due Process Clause.”) The Sandin Court

determined that the Hewitt approach had “led to the involvement of federal courts

in the day-to-day management of prisons, often squandering judicial resources with

little offsetting benefit to anyone.” Id. at 482. The Court reasoned that the inmate

at issue had not been afforded a liberty interest that would entitle him to the

procedural protections under Wolff v. McDonnell, 418 U.S. 539 (1974), stating

that his confinement “was within the range of confinement to be normally expected

for one serving an indeterminate term of 30 years to life.” Sandin, 515 U.S. at 487.

The Sandin decision, at its core, criticized only the methodology used in Hewitt to

determine what liberty interest, if any, was at stake. See Wilkinson v. Austin, 545

U.S. 209, 222 (2005) (“In Sandin, we criticized [the Hewitt] methodology as

creating a disincentive for States to promulgate procedures for prison management,

and as involving the federal courts in the day-to-day management of prisons.”)

(citing Sandin, 515 U.S. at 482-83). The Court in Wilkinson further pointed out

the real impact of the Court’s prior opinion, when it said:


                                         -9-
      After Sandin, it is clear that the touchstone of the inquiry into the
      existence of a protected, state-created liberty interest in avoiding
      restrictive conditions of confinement is not the language of
      regulations regarding those conditions but the nature of those
      conditions themselves “in relation to the ordinary incidents of prison
      life.”

Id. at 223 (quoting Sandin, 515 U.S. at 484) (emphasis added).

      The Florida Administrative Code defines close management as “the

confinement of an inmate apart from the general population, for reasons of security

or the order and effective management of the institution, where the inmate, through

his or her behavior, has demonstrated an inability to live in the general population

without abusing the rights and privileges of others.” Fla. Admin. Code R. 33-

601.800(1)(d). Close Management I (CMI) “is the most restrictive single cell

housing level of all the close management status designations.” Fla. Admin. Code

R. 33-601.800(2)(a)1. “An inmate assigned to CMI will be ineligible for a work

assignment.” Fla. Admin. Code R. 33-601.800(2)(a)2.

       The First District’s analysis of Sandin is contradicted by the United States

Supreme Court’s decision in Wilkinson. The holding of Sandin is not, as the

Banks majority interprets it, that an inmate has no liberty interest in remaining in

general population, but that the test to determine whether an inmate’s liberty

interest has been infringed is not based on the statutory language but whether the

confinement imposes atypical and significant hardship on the inmate in relation to




                                        - 10 -
ordinary incidents of prison life. Sandin, 515 U.S. at 484.3 A court may

appropriately review that question pursuant to an inmate’s petition for a writ of

habeas corpus. The First District’s conclusion that habeas is not the proper vehicle

because there is no liberty interest is based on a misapplication of Sandin4 and is

belied by its own reasoning that a prisoner may still file a petition for a writ of

habeas corpus to allege a violation of the Eighth Amendment even if a successful

challenge would not permit the inmate’s release from prison but only to general

population. Banks, 197 So. 3d at 1167 (stating that the decision would permit an

inmate to file a petition for a writ of habeas corpus to allege a claim that the

conditions of Close Management constitute cruel and unusual punishment in



      3. Federal courts in Florida have continued to consider prisoners’ federal
habeas claims regarding confinement classifications post-Sandin. See, e.g.,
Whitsett v. Cannon, 139 F. Supp. 3d 1293 (Fla. M.D. 2015).

      4. As Justice Breyer explains in his dissent:

      Thus, this Court has said that certain changes in conditions may be so
      severe or so different from ordinary conditions of confinement that,
      whether or not state law gives state authorities broad discretionary
      power to impose them, the state authorities may not do so “without
      complying with minimum requirements of due process.” Vitek v.
      Jones, 445 U.S. 480, 491-494 (1980) (“involuntary commitment to a
      mental hospital”); Washington v. Harper, 494 U.S. 210, 221-222
      (1990) (“unwanted administration of antipsychotic drugs”).

Sandin, 515 U.S. at 493 (Breyer, J., dissenting).




                                         - 11 -
violation of the Eighth Amendment). As reasoned in Judge Wolf’s concurring and

dissenting opinion, which we adopt here, the determination that Banks is not

entitled to relief does not and should not require the full foreclosure of habeas

petitions relating to Close Management assignments. Banks, 197 So. 3d at 1170-

71 (Wolf, J., concurring in part and dissenting in part) (“Inmates segregated from

the general population for a potentially significant period of time should continue

to have the same reasonable court oversight concerning their segregation from the

general prison population that they have had since 1982. Insignificant justification

has been provided to overturn our precedent and to effectively extinguish this

important safeguard.”). The appropriate analysis for the reviewing court is

whether an inmate’s assignment to close management constitutes an “atypical,

significant deprivation.” See Sandin, 515 U.S. at 484, 486. In addition to

reviewing the details of the assignment, the length of the assignment would also be

relevant to the reviewing court’s analysis. Id. (noting that Sandin’s placement was

only for thirty days and that his disciplinary record had been expunged). The

placement in Wilkinson was indefinite like the placement in Banks and unlike the

one in Sandin. Id. at 224. Also, an inmate’s loss of gain time and the length of his

or her sentence would be relevant to the reviewing court’s analysis.5


       5. Here, Banks lost 364 days of gain time but he did not challenge the loss.
The Sandin Court also left open for review “State’s actions [that] will inevitably
affect the duration of [an inmate’s] sentence.” Sandin, 515 U.S. at 487. The

                                        - 12 -
      For the foregoing reasons, we quash the en banc decision of the First District

below and approve of the conflict case. Because Banks has been released, we

decline to address the second issue presented.

      It is so ordered.

LABARGA, C.J., and PARIENTE, and LEWIS, JJ., concur.
POLSTON, J., dissents with an opinion, in which CANADY and LAWSON, JJ.,
concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.

POLSTON, J., dissenting.

      Because reassignment to close management does not establish a liberty

interest sufficient to trigger the protection of the Due Process Clause, I would

approve the decision of the First District Court of Appeal and hold that inmates

may not challenge their close management status by petition for writ of habeas

corpus, but must do so by petition for writ of mandamus, as held below.

Therefore, I respectfully dissent.

      The Fourteenth Amendment of the United States Constitution provides that

“[n]o State shall . . . deprive any person of life, liberty, or property, without due




Department illogically argues that Banks’ loss of gain time is not relevant to this
Court’s decision because Banks did “not assert that any gain time he would have
earned could entitled him to . . . early release from his 30-year prison sentence.”
Resp’t’s Answer Br. at 22.


                                         - 13 -
process of law.” A Fourteenth Amendment liberty interest may originate either

from the Due Process Clause itself or from state law. Meachum v. Fano, 427 U.S.

215, 225-26 (1976). In Wolff v. McDonnell, 418 U.S. 539, 556-58 (1974), the

United States Supreme Court determined that a statutory provision that dictated

mandatory reductions in prison sentences for good behavior created a liberty

interest in an inmate’s particular sentence such that procedural due process

protections applied in prison disciplinary proceedings. Thereafter in Meachum, the

United States Supreme Court determined that the Due Process Clause is not

implicated in every change in an inmate’s conditions of confinement, holding that

an inmate does not possess a liberty interest in being free from transfers between

prison facilities. 427 U.S. at 224-25. Following Wolff and Meachum, the United

States Supreme Court in Hewitt v. Helms, 459 U.S. 460, 471 (1983), shifted the

analysis to whether the state action “used language of an unmistakably mandatory

character” to determine whether a protected liberty interest was created.

      Importantly, the United States Supreme Court in Sandin v. Conner, 515 U.S.

472, 481-83 (1995), refocused the approach to defining liberty interests by

analyzing “the nature of the deprivation” experienced by the inmate as opposed to

the mandatory language of a state regulation. In Sandin, the United States

Supreme Court examined the due process claims of an inmate who was sentenced

to 30 days of disciplinary confinement. Id. at 475-76. The Court pointed out the


                                       - 14 -
flawed analysis adopted in Hewitt, noting “that the search for a negative

implication from mandatory language in prisoner regulations has strayed from the

real concerns undergirding the liberty protected by the Due Process Clause.” Id. at

483. The Court recognized that although a State may create protected liberty

interests through regulations or policies, those “interests will be generally limited

to freedom from restraint which . . . imposes atypical and significant hardship on

the inmate in relation to the ordinary incidents of prison life.” Id. at 484. If the

conditions of confinement do not impose an “atypical and significant hardship on

the inmate,” there is no constitutionally protected liberty interest in avoiding

restrictive confinement conditions. Id. at 483-86. Specifically, due process

protection is triggered if the conditions of confinement “present a dramatic

departure from the basic conditions of [an inmate’s] indeterminate sentence.” Id.

at 485.

      Focusing on the nature of the confinement instead of the language of the

regulations, the United States Supreme Court in Sandin examined the nature of the

30-day disciplinary confinement and concluded that “[b]ased on a comparison

between inmates inside and outside disciplinary segregation, the State’s actions in

placing him there for 30 days did not work a major disruption in his environment.”

Id. at 486. Accordingly, the Court held that “neither the Hawaii prison regulation

in question, nor the Due Process Clause itself, afforded [the inmate] a protected


                                         - 15 -
liberty interest that would entitle him to the procedural protections set forth in

Wolff.” Id. at 487. The 30-day disciplinary confinement “did not present the type

of atypical, significant deprivation in which a State might conceivably create a

liberty interest.” Id. at 486.

      The liberty interest inquiry articulated in Sandin requires a determination of

whether assignment to close management “imposes atypical and significant

hardship on the inmate in relation to the ordinary incidents of prison life.” Id. at

484. Then, in Wilkinson v. Austin, 545 U.S. 209, 223 (2005), the United States

Supreme Court reiterated “that the touchstone of the inquiry into the existence of a

protected, state-created liberty interest in avoiding restrictive conditions of

confinement is not the language of regulations regarding those conditions but the

nature of those conditions themselves ‘in relation to the ordinary incidents of

prison life.’ ” (quoting Sandin, 515 U.S. at 484).

      Here, because assignment to close management does not present conditions

where an inmate would suffer an atypical and significant hardship, no procedural

due process is due. The conditions of confinement under the close management

classification are as follows:

             When assigned to Close Management housing, the inmate is
      visited regularly by Department staff, and irregularly by other staff, to
      ensure the inmate’s safety and health. Fla. Admin. Code. R. 33–
      601.800(15). Daily visits are conducted by medical personnel, the
      institution’s housing supervisor, and the officer supervising the
      correctional staff; weekly visits are conducted by the warden and

                                         - 16 -
      assistant wardens, the security chief, and a classification officer. A
      Chaplain also visits weekly, and can visit more often if requested and
      if the Chaplain’s schedule permits.
             Close Management inmates may possess certain personal items,
      including hygiene items, electronic devices for listening to music,
      religious literature, personal property that does not pose security risks,
      writing paper, stamps, envelopes, and security pens to facilitate
      correspondence. Close Management inmates may conduct their legal
      affairs, have access to approved reading material and borrow library
      books, subscribe to magazines and newspapers, and use in-cell
      education and wellness opportunities. If the Close Management
      inmate does not violate a significant institutional rule, they may
      conduct bank transactions and order from the canteen. Fla. Admin.
      Code. R. 33–601.800(10)(g).
             Close Management inmates may have visitors by appointment.
      In addition, they are allotted six hours of outdoor exercise each week.
      Inmates assigned to CM II and CM III may obtain work assignments.
      Fla. Admin. Code. R. 33–601.800(10)(m) & (13). To provide
      incentive for improved behavior, privileges may increase as the
      inmate progresses to more lenient Close Management status. Fla.
      Admin. Code. R. 33–601.800(11).

Banks v. Jones, 197 So. 3d 1152, 1158 (Fla. 1st DCA 2016).

      As to the duration of confinement, placement in close management is

reviewed as follows:

             During the first 60 days of Close Management, the inmate’s
      placement is reviewed weekly by a member of the institution’s
      Classification Team; following that, review is monthly. Fla. Admin.
      Code. R. 33–601.800(16)(a). After six months, the inmate’s
      Classification Officer interviews and assesses the inmate, the previous
      placement decision, and whether a change in status is advisable. Fla.
      Admin. Code. R. 33–601.800(16)(c). In addition, the State’s
      Classification Officer interviews the inmate no less often than every
      six months to determine whether the status remains appropriate or
      must be modified, including whether the inmate should be reassigned
      to the general population. Fla. Admin. Code. R. 33–601.800(16)(e).


                                        - 17 -
Id.

      Although close management inmates experience more restrictive conditions

than inmates in the general population, that fact does not render such confinement

atypical or a significant hardship. The regulations outlining the parameters of

confinement in close management do not present conditions that are atypical of

those experienced by the general population. Inmates in close management retain

personal property, including a radio for listening to music, writing paper and a

security pen, personal hygiene items, and reading materials. See Fla. Admin.

Code. R. 33–601.800(10). Close management Inmates may conduct their legal

affairs with access to the law library and personal legal papers. See Fla. Admin.

Code. R. 33–601.800(10)(i). An exercise schedule ensures a minimum of six

hours of outdoor exercise per week. See Fla. Admin. Code. R. 33–

601.800(10)(m). Without a major rule violation, close management inmates may

make canteen purchases. See Fla. Admin. Code. R. 33–601.800(10)(g). Inmates

assigned to all but the most restrictive close management status are eligible for

work assignments. See Fla. Admin. Code. R. 33–601.800(13). Additionally, close

management inmates may have visitors by appointment, and are visited regularly

by staff. See Fla. Admin. Code. R. 33–601.800(11), (15). Accordingly,

reassignment to close management “is not dissimilar to a transfer from a less-

secure to a more-secure institution, where a prisoner must adapt to more


                                        - 18 -
burdensome and strict living conditions.” Banks, 197 So. 3d at 1161. The

conditions of confinement in close management are insufficient to “present the

type of atypical, significant deprivation in which a State might conceivably create a

liberty interest.” See Sandin, 515 U.S. at 486. Therefore, Banks does not have a

protected liberty interest to remain in the general population.

      The majority concludes that confinement in close management creates a

liberty interest because it erroneously determines that the conditions are analogous

to the assignment to a supermax facility such as the one at issue in Wilkinson. See

majority op. at 12 (“The placement in Wilkinson was indefinite like the placement

in Banks and unlike the one in Sandin.”). In Wilkinson, the United States Supreme

Court found that inmates had a constitutionally protected liberty interest in

avoiding assignment to a state supermax facility. 545 U.S. at 213. In comparing

the conditions between general population and disciplinary segregation to a

supermax prison, the United States Supreme Court focused on the extreme

isolation of the restrictive confinement where inmates were “deprived of almost

any environmental or sensory stimuli and of almost all human contact.” Id. at 214.

Specifically, for inmates in the supermax facility “almost all human contact is

prohibited, even to the point that conversation is not permitted from cell to cell; the

light, though it may be dimmed, is on for 24 hours; exercise is for 1 hour per day,

but only in a small indoor room.” Id. at 223-24. The duration of “placement at


                                        - 19 -
[the supermax facility] is for an indefinite period of time, limited only by an

inmate’s sentence,” and “[i]nmates otherwise eligible for parole lose their

eligibility while incarcerated at [the supermax facility].” Id. at 214-15. The

United States Supreme Court determined that the conditions associated with

assignment to the supermax facility imposed an atypical and significant hardship

when compared to conditions associated with general population, implicating a

liberty interest. Id. at 223-24.

      However, the conditions of confinement experienced by close management

inmates are materially different than the conditions of the supermax facility the

Supreme Court found to be atypical in Wilkinson. Unlike the inmates in

Wilkinson, close management inmates are not deprived of all environmental or

sensory stimuli or all human contact. Close management inmates are afforded

regular contact with staff and visitors by appointment, 6 hours outdoor recreation

every week, placement review weekly during the first 60 days, monthly after that,

and formal review after 6 months and every 6 months following. Therefore, I

disagree with the majority’s conclusion that the conditions of close management

are analogous to placement in the supermax facility, rendering such confinement

atypical.

      Moreover, without a liberty interest to remain in the general population,

habeas corpus is not the proper mechanism to challenge the reassignment to close


                                        - 20 -
management. Habeas exists as a remedy for restraints on individual liberty, and

without a liberty interest that would trigger due process protections, no remedy

could be achieved through a petition for writ of habeas corpus. See Sneed v.

Mayo, 66 So. 2d 865, 869 (Fla. 1953) (“The great writ of habeas corpus is a writ of

right obtainable under our Constitution by all men who claim to be unlawfully

imprisoned against their will. It is designed to test solely the legality of the

petitioner’s imprisonment, and may not be used as a substitute for appeal.”); see

generally Bush v. State, 945 So. 2d 1207, 1210 (Fla. 2006) (“[I]f the prisoner

alleges entitlement to immediate release, a petition for writ of habeas corpus is the

proper remedy . . . .”); Murray v. Regier, 872 So. 2d 217, 222 (Fla. 2002) (“[T]he

traditional purpose of the writ of habeas corpus is to furnish a . . . remedy to one

whose liberty is unlawfully restrained.”).

      Therefore, as the First District explained, inmates may challenge their status

of close management through mandamus relief by asserting that the detention is

not supported by the agency’s rules. See Banks, 197 So. 3d at 1167 (“[I]f a

prisoner alleges he has been deprived of the periodic review required by the

rules . . . he may be entitled to mandamus relief; merely disagreeing with the

Department’s discretionary decisions cannot show entitlement to relief, as there

would be no showing of a ‘clear legal right.’ ”).




                                         - 21 -
      To summarize, because inmates do not possess a liberty interest in avoiding

assignment to close management, mandamus is the proper vehicle to seek release

from close management. Therefore, I would approve the decision of the First

District. I respectfully dissent.

CANADY and LAWSON, JJ., concur.

Application for Review of the Decision of the District Court of Appeal – Certified
Direct Conflict of Decisions

      First District - Case No. 1D15-330

      (Bradford County)

Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, Florida,

      for Petitioner

Pamela Jo Bondi, Attorney General, Denise M. Harle, Deputy Solicitor General,
and Daniel A. Johnson, Assistant Attorney General, Tallahassee, Florida,

      for Respondent




                                      - 22 -
