Robert E. BANKS, Petitioner, v. Julie L. JONES, etc., Respondent, 232 So. 3d 963

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 requirements.” Id. at 1159 (citing Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (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,” 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 1100 (citing Sandin, 515 U.S. at 481, 115 S.Ct. 2293). So reasoning, the First District announced its decision to “recede from prior decisions ,.. allowing] 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 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.

Banks sought review in this Court, which we granted. 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 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 Wolfs concurring in part and dissenting in part opinion. The United States Supreme Court’s 1983 decision in Hewitt v.

Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (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, 103 S.Ct. 864. 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, 103 S.Ct. 864 (citing Meachum v. Fano, 427 U.S. 215, 223-227, 96 S.Ct. 2532, 49 L.Ed.2d 451 (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, 103 S.Ct. 864 (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 [94 S.Ct. 2963], 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.

Fano, [ 427 U.S.] at 225 [96 S.Ct. 2532], 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 [68 S.Ct. 1049, 92 L.Ed. 1356] (1948). Thus, there is no “constitutional or inherent right” to parole, Greenholtz v.

Nebraska Penal Inmates, 442 U.S. 1, 7 [99 S.Ct. 2100, 60 L.Ed.2d 668] (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 [94 S.Ct. 2963], despite the undoubted impact of such credits on the freedom of inmates. Finally, in Meachum v.

Fano, [ 427 U.S.] at 225 [96 S.Ct. 2532], 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, 97 S.Ct. 274, 50 L.Ed.2d 236 (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 [96 S.Ct. 2543, 49 L.Ed.2d 466] (1976). See also Vitek v. Jones, 445 U.S. 480, 493 [100 S.Ct. 1254, 63 L.Ed.2d 552] (1980). Hewitt, 459 U.S. at 467-68, 103 S.Ct. 864 (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 468,103 S.Ct. 864. 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 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 469-72,103 S.Ct. 864. In 1995, the United States Supreme Court reconsidered its ruling in Hewitt. See Sandin v.

Conner, 515 U.S. 472, 474, 115 S.Ct. 2293, 132 L.Ed.2d 418 (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, 115 S.Ct. 2293.

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, 94 S.Ct. 2963, 41 L.Ed.2d 935 (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, 115 S.Ct. 2293. 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, 125 S.Ct. 2384, 162 L.Ed.2d 174 (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, 115 S.Ct. 2293).

The Court in Wilkinson further pointed out the real impact of the Court’s prior opinion, when.it said: 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, 125 S.Ct. 2384 (quoting Sandin, 515 U.S. at 484, 115 S.Ct. 2293) (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(l)(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)l, “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 ah 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 ordinary incidents of prison life. Sandin, 515 U.S. at 484, 115 S.Ct. 2293. 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 ⅛ not the proper vehicle because there is no liberty interest is based on a misapplication of Sandin and is belied by its own reasoning that a prisoner may still file a petition for a writ of habe-as 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 violation of the Eighth Amendment). As reasoned in Judge Wolfs 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, 115 S.Ct. 2293. 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, 125 S.Ct. 2384.

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. 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. . Id at 1160 (citing Board of Pardons v. Allen, 482 U.S, 369, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987); Washington v.

Harper, 494 U.S. 210, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990); Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980)). . 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, Jn the petition, Holland sought to compel {he 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). .

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). , As Justice Breyer explains in his dissent: Thus, this Court has said that certain changes in conditions may be so severe or so différent 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 [100 S.Ct. 1254, 63 L.Ed.2d 552] (1980) (“involuntary commitment to a mental hospital”): Washington v. Harper, 494 U.S. 210, 221-222 [110 S.Ct. 1028, 108 L.Ed.2d 178] (1990) ("unwanted administration of anti-psychotic drugs”). Sandin, 515 U.S. at 493 [115 S.Ct. 2293] (Breyer, J., dissenting). . 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 [115 S.Ct. 2293], The 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.