1:25-cv-00113•MOLLICA v. WARDEN CROSS CITY CORRECTIONAL INSTITUTION
Full text
Page 1 of 8 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA GAINESVILLE DIVISION DAVID P. MOLLICA, Petitioner, v. Case No. 1:25cv113-AW-HTC WARDEN, CROSS CITY CORRECTIONAL INSTITUTION, Respondent. __________________________/ REPORT AND RECOMMENDATION Petitioner David P. Mollica, an inmate serving a life sentence in the Florida Department of Corrections (“FDOC”) and proceeding pro se, filed a habeas petition pursuant to 28 U.S.C. § 2241. Doc. 1.1 Pending before the Court is the Respondent’s Motion to Dismiss for failure to exhaust. Doc. 21. Upon consideration of the motion, Mollica’s Response (Doc. 26), and relevant law, the undersigned recommends the Motion to Dismiss be GRANTED and this case dismissed. I. BACKGROUND In 1978, a jury found Mollica guilty of first-degree murder during a robbery, and the trial judge sentenced him to life in prison with eligibility for parole after twenty-five years. See State v. Mollica, No. 1977-CF-903 (Fla. 6th Jud. Cir. for 1 The Petition was originally filed in the Middle District but transferred to this District because Mollica was confined at Cross City Correctional Institution in the Northern District. Doc. 3. Case 1:25-cv-00113-AW-HTC Document 27 Filed 03/09/26 Page 1 of 8
Page 2 of 8 Case No. 1:25cv113-AW-HTC Pasco County)2; Mollica v. State, 374 So. 2d 1022 (Fla. 2d DCA July 27, 1979) (written opinion affirming conviction). In 1999, Mollica filed a habeas petition challenging the conviction, which the Middle District dismissed with prejudice as untimely. Mollica v. Moore, Case No. 8:99cv1673, at Doc. 5 (Order dismissing case) (M.D. Fla. July 21, 1999). On April 10, 2025, Mollica filed the instant petition. Doc. 1 at 1. Although the claims are hard to decipher, he appears to challenge the FDOC’s failure to award him gain time credit. He also appears to challenge his original sentence as exceeding the statutory maximum.3 II. ANALYSIS Before filing a federal habeas corpus petition, a state prisoner must first exhaust all available state court remedies. 28 U.S.C. § 2254(b)(1); see Duncan v. Henry, 513 U.S. 364, 364–65 (1995). To satisfy the exhaustion requirement, the petitioner “must give the state courts one full opportunity to resolve any 2 A federal court may properly take judicial notice of state and federal court dockets. Paez v. Sec’y, Fla. Dep’t of Corr., 947 F.3d 649, 652 (11th Cir.), cert. denied sub nom. Paez v. Inch, 141 S. Ct. 309 (2020); Fed. R. Evid. 201(b)(2). Thus, the undersigned will take judicial notice of Mollica’s state and federal court records. 3 As an initial matter, to the extent the petition contains any challenge to the original conviction or sentence, the claim is barred as an unauthorized successive petition. In 1999, the Middle District dismissed with prejudice as time barred Mollica’s earlier Section 2254 petition challenging the same state court judgment. Mollica v. Moore, No. 8:99-cv-1673-RAL-TBM (M.D. Fla.). In 2025, the Middle District explained to Mollica that if he attempted to raise a claim in a new petition challenging his sentence, which he could have raised in the earlier petition, the court would lack jurisdiction to consider the claim until Mollica obtains permission from the court of appeals. See Doc. 7 in Mollica v. Warden, et al., 8:25cv505 (M.D. Fla. Mar. 20, 2025) (dismissing petition as unauthorized successive petition). Therefore, the Court will consider only Mollica’s claims about how the FDOC is executing his sentence by applying or denying gain time. Case 1:25-cv-00113-AW-HTC Document 27 Filed 03/09/26 Page 2 of 8
Page 3 of 8 Case No. 1:25cv113-AW-HTC constitutional issues by invoking one complete round of the State’s established appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). Under Florida law, “if the prisoner alleges entitlement to immediate release, a petition for writ of habeas corpus is the proper remedy," and the petition should be filed in "the circuit court of the county in which the prisoner is detained.” Bush v. State, 945 So. 2d 1207, 1210 (Fla. 2006) (citing Fla. Stat. § 79.09). If the petition is denied, the prisoner is entitled to appellate review. See, e.g., Dennis v. State, 685 So. 2d 1373, 1375 (Fla. 3d DCA 1996) (allowing review of the trial court's denial of the petition for habeas corpus). Moreover, under Florida law, habeas corpus may not be invoked unless all other remedies, including administrative remedies, have been exhausted. Taylor v. Wainwright, 418 So.2d 1095 (Fla. 5th DCA 1982) (exhaustion of administrative remedies is a prerequisite to a petition for writ of habeas corpus); Newsome v. Singletary, 637 So.2d 9 (Fla. 2d DCA 1994) (explaining if a prisoner challenges the award of gain time, he must exhaust administrative remedies). Here, because Mollica is an inmate of the Florida Department of Corrections, he must exhaust FDOC’s grievance procedures. The grievance procedures promulgated by FDOC generally require an inmate to complete three steps. First, the inmate must file an informal grievance with a designated prison staff member. Second, the inmate must file a formal grievance with the warden’s office. Third, the inmate must submit an appeal to the Office of the Secretary. See Fla. Admin. Code Case 1:25-cv-00113-AW-HTC Document 27 Filed 03/09/26 Page 3 of 8
Page 4 of 8 Case No. 1:25cv113-AW-HTC r. 33-103.005 to 33-103.007; see also Parzyck v. Prison Health Servs., Inc., 627 F.3d 1215, 1218 (11th Cir. 2010). Mollica has not properly exhausted his claims in FDOC or state court. First, the June 18, 2020, post-conviction motion Mollica filed in the underlying criminal case, requesting that the court “correct his gain-time and issue a writ of habeas corpus” (Doc. 23 at 15) did not exhaust his state remedies because he failed to first exhaust FDOC remedies. The circuit court denied the motion for that reason, explaining, “If the Defendant takes issue with the gain time credit determination by the DOC, he must address this claim administratively with the DOC” and only then could he file the appropriate petition in state circuit court. Id. at 16. Second, Mollica’s three FDOC grievances or appeals from 2024 and 2025 (which he attached to the petition) did not exhaust the gain-time issue because Mollica failed in each to fairly alert the FDOC of the gain-time issue. On September 3, 2024, he filed an appeal to the Secretary, arguing that he was being illegally detained because he “was illegally sentenced under law not yet promulgated” and he was “beyond the statutory maximum even without gain-time.” Doc. 1 at 15. Although Mollica mentioned gain-time, he only grieved the original sentence he received as being unlawful – regardless of gain-time. This was not sufficient notice to FDOC for exhaustion. See e.g., Toenniges v. Ga. Dep't of Corr., 600 F. App'x 645, 649 (11th Cir. 2015) (“The critical function of the grievance process is that it Case 1:25-cv-00113-AW-HTC Document 27 Filed 03/09/26 Page 4 of 8
Page 5 of 8 Case No. 1:25cv113-AW-HTC provides the institution with notice of a problem such that they have an opportunity to address the problem internally.”). The same is true of the March 15, 2025, Inmate Request directed to “Classification,” in which Mollica argued he was being detained “against the laws and statutes that appl[ied] … at the time of the offense in violation of the Ex Post Facto law” and cited various cases without explanation. Doc. 1 at 14. Again, this failed to fairly alert the FDOC to the issue with the denial of gain-time. Likewise, the March 19, 2025, appeal to the Secretary failed to raise a challenge to the denial of gain-time. In that appeal, Mollica argued: (1) “The sentence I was sentenced under was not promulgated into law until January 1, 1979. The crime took place October 2, 1977,” which violated the Ex Post Facto clause; and (2) “even under the illegal sentence there is a 40 year statutory maximum on all life sentences including capital felonies … . Even sans gain time I am well beyond the statutory maximum.” Doc. 1 at 13. Again, this language presents only a challenge to the original sentence and not any denial of gain time; indeed, the grievance explicitly avoids relying on a gain-time argument. Finally, Mollica’s April 18, 2023, Petition for Writ of Habeas Corpus filed in Pasco County Circuit Court failed to exhaust any issues because it was dismissed for lack of jurisdiction. In the April 18, 2023, petition, Mollica argued (1) that under Weaver v. Graham, 450 U.S. 24, 26 (1981) he was entitled to gain-time despite his life sentence (Doc. 23 at 25); and (2) that his sentence violated the Ex Post Facto law Case 1:25-cv-00113-AW-HTC Document 27 Filed 03/09/26 Page 5 of 8
Page 6 of 8 Case No. 1:25cv113-AW-HTC because he was sentenced under a law which increased his statutory maximum and which was not in effect at the time of his crime. Doc. 23 at 26. As the circuit court explained, a petition for writ of habeas corpus can be filed only in the district in which the prisoner is detained, which was Glades County at the time of the 2023 petition. Doc. 23 at 34. The Second District Court of Appeals affirmed on the jurisdictional issue on September 6, 2024. Doc. 23 at 38. In sum, Mollica has failed to exhaust the FDOC or the state court remedies before filing the instant federal habeas petition. Therefore, the petition should be dismissed. III. CONCLUSION The undersigned also finds that an evidentiary hearing is not warranted. In deciding whether to grant an evidentiary hearing, this Court must consider “whether such a hearing could enable an applicant to prove the petition’s factual allegations, which, if true, would entitle the applicant to federal habeas relief.” Schriro v. Landrigan, 550 U.S. 465, 474 (2007). Here, no factual issues are involved in determining that Mollica’s petition is unexhausted, so an evidentiary hearing is not warranted. A certificate of appealability should also be denied. Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts provides: “[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” If a certificate is issued, “the court must state the Case 1:25-cv-00113-AW-HTC Document 27 Filed 03/09/26 Page 6 of 8
Page 7 of 8 Case No. 1:25cv113-AW-HTC specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2).” 28 U.S.C. § 2254 Rule 11(a). A timely notice of appeal must still be filed, even if the court issues a certificate of appealability. 28 U.S.C. § 2254 Rule 11(b). After reviewing the record, the Court finds no substantial showing of the denial of a constitutional right. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483- 84 (2000) (explaining how to satisfy this showing) (citation omitted). Therefore, it is also recommended that the district court deny a certificate of appealability in its final order. Accordingly, it is respectfully RECOMMENDED: 1. That the Motion to Dismiss (Doc. 21) be GRANTED. 2. That the petition be DISMISSED without prejudice for failure to exhaust. 3. That a certificate of appealability be DENIED. 4. That the clerk be directed to close the file. At Pensacola, Florida, this 9 th day of March, 2026. /s/ Hope Thai Cannon HOPE THAI CANNON UNITED STATES MAGISTRATE JUDGE Case 1:25-cv-00113-AW-HTC Document 27 Filed 03/09/26 Page 7 of 8
Page 8 of 8 Case No. 1:25cv113-AW-HTC NOTICE TO THE PARTIES Objections to these proposed findings and recommendations must be filed within fourteen days of the date of the Report and Recommendation. Any different deadline that may appear on the electronic docket is for the court’s internal use only and does not control. An objecting party must serve a copy of its objections upon all other parties. A party who fails to object to the magistrate judge’s findings or recommendations contained in a report and recommendation waives the right to challenge on appeal the district court’s order based on the unobjected-to factual and legal conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. § 636. Case 1:25-cv-00113-AW-HTC Document 27 Filed 03/09/26 Page 8 of 8
Wondering how this text applies to your situation?
Free consultation, no commitment
Describe your situation. Our team will contact you by email about your consultation.
Continue your research in ChatGPT or Claude
Connect Omnilex to search the legal corpus from your AI assistant.