           Case: 17-12930   Date Filed: 08/14/2018   Page: 1 of 8


                                                        [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-12930
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 4:14-cv-00178-RH-CAS




TOMMY LEE GAINES,

                                                          Petitioner-Appellant,


                                  versus


CHAIRMAN, FLORIDA PAROLE COMMISSION,
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

                                                       Respondents-Appellees.

                      ________________________

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

                            (August 14, 2018)

Before MARCUS, BRANCH, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Tommy Lee Gaines, a Florida prisoner proceeding pro se, appeals the

district court’s denial, without a hearing, of his 28 U.S.C. § 2254 petition. On

appeal, he argues that the Florida Parole Commission (“the Commission”) violated

his due process rights by withholding evidence and failing to hold a hearing on his

conditional release violation. The district court issued a certificate of appealability

(“COA”) on the following issue: whether the district court properly denied,

without a hearing, Gaines’s claim that his waiver of a hearing before the

Commission was involuntary and that the Commission’s revocation of his

conditional release without a hearing thus violated the Due Process Clause. We

conclude that the state habeas court’s determination that Gaines was afforded due

process was not contrary to or an unreasonable application of clearly established

federal law and was not based on an unreasonable determination of the facts. We

therefore affirm the district court’s denial of Gaines’s § 2254 petition.

                                  I. STANDARD
      In examining the district court’s denial of a § 2254 petition, we review

questions of law and mixed questions of law and fact de novo and findings of fact

for clear error. Stewart v. Sec’y, Dep’t of Corr., 476 F.3d 1193, 1208 (11th Cir.

2007). We review a district court’s decision to grant or deny an evidentiary hearing

for abuse of discretion. McNair v. Campbell, 416 F.3d 1291, 1297 (11th Cir.

2005).


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      As amended by the Antiterrorism and Effective Death Penalty Act

(“AEDPA”), 28 U.S.C. § 2254(d) prohibits federal courts from granting habeas

relief on claims previously adjudicated on the merits in state court unless the state

court decision (1) was contrary to, or involved an unreasonable application of,

clearly established federal law as determined by the U.S. Supreme Court, or

(2) was based on an unreasonable determination of the facts in light of the

evidence presented in the state court proceeding. 28 U.S.C. § 2254(d)(1)–(2). In

habeas proceedings, a determination of a factual issue made by a state court is

presumed to be correct, and the applicant has the burden of rebutting the

presumption of correctness by clear and convincing evidence. Id. § 2254(e)(1).

                               II. BACKGROUND
      In 1990, Gaines pled guilty in Florida state court to possession of a firearm

by a convicted felon and possession of cocaine. The Florida state court sentenced

Gaines to thirty years and ten years imprisonment. On September 1, 2008, Gaines

was placed on conditional supervised release until June 8, 2020. One condition of

this release required Gaines to “obey all laws, ordinances, and statutory conditions

of conditional release.”

      On May 26, 2012, Gaines was arrested after being involved in a physical

altercation with another man. Deputy Kenneth Roberts of the Putnam County

Sheriff’s Office responded to the incident and wrote a police report about the


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arrest. According to the report, Gaines stated that the other man insulted Gaines’s

girlfriend and the “next thing he knew they were fighting.” On May 31, 2012, the

Florida Parole Commission issued a “warrant for retaking of conditional release”

based on the May 26, 2012 arrest and police report.

      On June 6, 2012, Parole Examiner Richard Hughes met with Gaines

regarding the conditional release violation proceedings. Hughes presented Gaines

with a Notice of Hearing form, which charged Gaines with “failing to obey all

laws, ordinances or statutory conditions of Conditional Release, in that on or about

May 26, 2012, in Putnam County, Florida, he did unlawfully touch, strike, or cause

bodily harm to [the victim], against the will of said victim.” Hughes also presented

Gaines with a Notice of Rights form, which informed Gaines that he had the

following rights: the right to appear and speak on his own behalf at a release

violation hearing; the right to present evidence on his own behalf, including the

right to obtain witnesses; the right to examine evidence to be used against him and

to confront and cross examine adverse witnesses at the violation hearing; the right

to be represented by counsel; and the right to receive fourteen days advance notice

of the hearing. Gaines initialed the form next to the following provision: “I hereby

freely and voluntarily waive my right to said violation hearing.”

      Gaines also signed a separate Waiver of Conditional Release Violation

Hearing form. By signing the waiver, Gaines acknowledged that his rights had


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been explained to him and that he understood them. He acknowledged that he was

“waiving the requirement for the Commission to conduct a violation hearing

regarding [his] alleged violations” and that he understood he may be found guilty

of the charges regardless of whether such charges resulted in a conviction. Gaines

acknowledged that he was given a Withdrawal of Voluntary Waiver form,

allowing him to withdraw his waiver of the violation hearing within fourteen days.

Gaines further acknowledged that “no promises, threats or inducements” were

made to him to cause him to sign the form.

      On June 10, 2012, Gaines sent a letter to the Commission, admitting that he

did get into a fight with a man who insulted his girlfriend, saying he was sorry, and

asking the Commission to reinstate his conditional release. On July 11, 2012, the

Commission issued an order revoking Gaines’s conditional release. The

Commission primarily relied on Deputy Roberts’s police report of the incident.

      Gaines filed a petition for habeas corpus in state court, arguing in part that

the Commission violated his due process rights by revoking his conditional release

without a hearing. Specifically, he claimed that his waiver was involuntary

because: (1) he signed the waiver in reliance on Hughes’s assurance that his

conditional release would be reinstated due to the fact that he was only charged

with a misdemeanor, and (2) he was not given a copy of Deputy Roberts’s police

report before he signed the waiver forms. The state court denied the petition,


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finding that Gaines voluntarily waived his right to a conditional release violation

hearing. The Florida court of appeals affirmed. Gaines then filed the present

§ 2254 petition in federal district court, arguing that the Commission violated his

due process rights by revoking his conditional release without a hearing.

                                  III. DISCUSSION
      The Due Process Clause of the Fourteenth Amendment of the United States

Constitution provides that “[n]o state shall . . . deprive any person of life, liberty,

or property, without due process of law.” U.S. Const. amend. XIV, § 1. In

Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972), the

Supreme Court outlined the due process requirements for parole revocation

hearings. Id. at 485–89, 92 S. Ct. 2602–05. While the “full panoply of rights due a

defendant” in criminal proceedings “does not apply to parole revocations,” the

Supreme Court held that there are certain “minimum requirements of due process”

for revocation proceedings, including:

      (a) written notice of the claimed violations of parole; (b) disclosure to
      the parolee of evidence against him; (c) opportunity to be heard in
      person and to present witnesses and documentary evidence; (d) the
      right to confront and cross-examine adverse witnesses (unless the
      hearing officer specifically finds good cause for not allowing
      confrontation); (e) a ‘neutral and detached’ hearing body such as a
      traditional parole board, members of which need not be judicial
      officers or lawyers; and (f) a written statement by the factfinders as to
      the evidence relied on and reasons for revoking parole.

Id. at 480, 489, 92 S. Ct. at 2600, 2604 (quotations omitted).


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      The district court did not err in denying Gaines’s habeas petition. First, the

state habeas court reasonably found that Gaines voluntarily waived his right to a

hearing. By initialing the Notice of Rights form and signing the Waiver of

Conditional Release Hearing form, Gaines acknowledged that he understood his

rights, that no promises, threats, or inducements caused him to sign, and that he

freely chose to waive his right to a hearing. Additionally, the state habeas court

considered the declaration of Parole Examiner Hughes, which the Commission

offered in opposition to Gaines’s claim that his waiver was involuntary. Hughes

states that Gaines elected to waive his right to a hearing after Hughes explained to

him the consequences of doing so. Hughes declares that Gaines’s claim that

Hughes informed him that his conditional release would be reinstated is

“absolutely false.” Gaines offers no evidence to the contrary. Given this record, the

state habeas court reasonably found that Gaines’s waiver was voluntary.

      The state habeas court also reasonably concluded that the Commission

complied with the minimum due process requirements for revocation proceedings.

The Commission, through parole examiner Hughes, provided Gaines with written

notice of his parole violation as well as his rights to have evidence disclosed to him

and to appear at a parole violation hearing. The record supports the state habeas

court’s conclusion that Gaines voluntarily waived those rights. Gaines does not

offer any evidence to support his claim that he requested and was denied a copy of


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Deputy Roberts’s police report before July 11, 2012, when the Commission

revoked his conditional release. Given that Gaines was advised of his right to have

evidence disclosed and freely chose to waive his right to a hearing without

requesting said evidence, the state court’s conclusion that Gaines was afforded due

process is not contrary to or an unreasonable application of clearly established

federal law. See Morrissey, 408 U.S. at 490, 92 S. Ct. at 2604 (“We have no

thought to create an inflexible structure for parole revocation procedures.”).

      Finally, the district court did not abuse its discretion by failing to hold an

evidentiary hearing regarding Gaines’s § 2254 petition. When a state court has

adjudicated the claim presented by the petitioner, an evidentiary hearing may only

be granted if the federal court concludes that the state court unreasonably applied

clearly established federal law or made an unreasonable determination of fact.

Landers v. Warden, 776 F.3d 1288, 1294–95 (11th Cir. 2015). Here, the district

court correctly concluded that an evidentiary hearing was not necessary because

the state habeas court did not unreasonably apply federal law or make

unreasonable findings of fact.

      AFFIRMED.




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