TOM BARBER UNITED STATES DISTRICT JUDGE
ORDER
Turner applies under 28 U.S.C. § 2254 for a writ of habeas corpus (Doc. 1), disputing the amount of gain time he has been awarded by the Department of Corrections (DOC) while serving a sixty-year prison sentence for Robbery with a Gun or Deadly Weapon imposed by a Florida state court in on May 10, 1983. For the reasons explained below, Turner's application must be dismissed.
Background and Analysis
It is well-established that an applicant must present each claim to a state court before raising the claim in federal court. "[E]xhaustion of state remedies requires that petitioners 'fairly presen[t]' federal claims to the state courts in order to give the State the 'opportunity to pass upon and correct' alleged violations of its prisoners' federal rights." Duncan v. Henry, 513 U.S. 364, 365 (1995); accord Rose v. Lundy, 455 U.S. 509, 518-19 (1982) ("A rigorously enforced total exhaustion rule will encourage state prisoners to seek full relief first from the state courts, thus giving those courts the first opportunity to review all claims of constitutional error."). "To provide the State with the necessary 'opportunity,' the prisoner must 'fairly present' his claim in each appropriate state court . . . thereby alerting that court to the federal nature of the claim." Baldwin v. Reese, 541 U.S. 27, 27 (2004) (citing Duncan, 513 U.S. at 365-66).
Turner maintains he has exhausted his state remedies based on his previous litigation in state court concerning the DOC's implementation of additional work and gain-time as required by Waldrup v. Dugger, 562 So.2d 687 (Fla. 1986). Turner's assertion is incorrect. His present claim involves a very different legal issue. In the petition currently before this Court, Turner takes issue with: (1) the DOC's imposition of a minimum mandatory provision restricting the award of gain time for the first three years of his sentence when, according to him, the statute so providing was not enacted until after the date of his offense and; (2) the DOC's alleged failure to provide him with monthly gain time evaluations. Neither of these issues were involved in his previous state court litigation pursuant to Waldrup v. Dugger, 562 So.2d 687 (Fla. 1986). Therefore, he has failed to exhaust his remedies in state court and Turner's application for a writ of habeas corpus (Doc. 1) must be DISMISSED. The Clerk is directed to CLOSE this case.
Denial of Both
Certificate of Appealability
and Leave to Appeal In Forma Pauperis
Turner is not entitled to a certificate of appealability ("COA"). A prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his application. 28 U.S.C. § 2253(c)(1). Rather, a district court must first issue a COA. Section 2253(c)(2) permits issuing a COA "only if the applicant has made a substantial showing of the denial of a constitutional right." To merit a COA, Turner must show that reasonable jurists would find debatable both the merits of the underlying claims and the procedural issues he seeks to raise. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478 (2000); Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir 2001). Because he fails to show that reasonable jurists would debate either the merits of the claims or the procedural issues, Turner is entitled to neither a COA nor leave to appeal in forma pauperis.
A certificate of appealability is DENIED. Leave to appeal in forma pauperis is DENIED. Turner must obtain permission from the circuit court to appeal in forma pauperis.
DONE and ORDERED in Chambers, in Tampa, Florida, this 1st day of April, 2020.
/s/ _________
TOM BARBER
UNITED STATES DISTRICT JUDGE