SELWAY v. FLORIDA COMMISSION ON OFFENDER REVIEW et al

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
GARY SCOTT SELWAY,
Petitioner,
v. 	Case No. 4:25cv034-AW/MAF
FLORIDA COMMISSION ON
OFFENDER REVIEW,
and
FLORIDA DEPARTMENT OF
CORRECTIONS,
Respondents.
/
REPORT AND RECOMMENDATION
On January 16, 2025, Petitioner Gary Scott Selway, a state inmate
proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2241. 	ECF No. 1. 	Petitioner Selway challenges the execution of
his sentence and asserts he is being held illegally as his sentence has
expired. 	Id. 	Thus, this petition is governed by both 28 U.S.C. § 2241 and
28 U.S.C. § 2254. 	See Thomas v. Crosby, 371 F.3d 782, 787 (11th Cir.
2004); Medberry v. Crosby, 351 F.3d 1049, 1053-54 (11th Cir. 2003).
On April 11, 2025, Respondent Florida Commission on Offender
Review (Commission) filed an answer, ECF No. 9, with exhibits (hereinafter
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cited as “Commission Ex. __”). 	On April 18, 2025, Respondent Department
of Corrections (DOC) filed an answer, ECF No. 12, and on May 1, 2025, filed
exhibits, ECF No. 13 (hereinafter cited as “DOC Ex. __”). 	Petitioner Selway
has filed replies to each answer. 	ECF Nos. 14 (reply to Commission’s
answer) and 15 (reply to DOC’s answer).
The matter was referred to the undersigned United States Magistrate
Judge for report and recommendation pursuant to 28 U.S.C. § 636 and
Northern District of Florida Local Rule 72.2(B). 	After careful consideration,
the undersigned has determined no evidentiary hearing is required for the
disposition of this matter. 	See Rule 8(a), R. Gov. § 2254 Cases. 	The
pleadings and attachments before the Court show Petitioner is not entitled
to federal habeas relief.
Background
Petitioner Selway is serving a sentence, as a habitual violent felony
offender, of thirty (30) years in prison, having been tried and convicted of
three counts in June 1994 in case number CR93-7780, in the Ninth Judicial
Circuit, Orange County, Florida, for offenses that occurred July 22, 1993:
(1) armed trespass in a structure (a lesser included offense), a third degree
felony in violation of section 810.08(2)(c), Florida Statutes; (2) attempted
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third degree murder with a weapon, a second degree felony in violation of
sections 782.04, 775.087, and 774.04, Florida Statutes; and (3) aggravated
battery causing great bodily harm with a weapon, a first degree felony in
violation 	of 	section 	784.045 	and 	775.007(1)(a), 	Florida 	Statutes.
Commission Ex. A; DOC Exs. A and B; see Selway v. State, 863 So. 2d 356
(5th DCA 2003). 	On March 14, 2012, Selway was placed on conditional
release until July 14, 2023, on the “controlling 30 year term of 10,950 days
(count 3)” comprised of 391 days of county jail credit, 6420 days of time
served from August 16, 1994, to March 14, 2012, and 4,139 days of gain
time. 	DOC Ex. A. 	See Commission Ex. B; DOC Ex. C.
On May 4, 2023, a Warrant for Retaking Conditional Release was
issued for Selway, asserting he had violated Condition (4)(c) three times by
using or possessing narcotics or drugs in August 2022 and December 2022,
and Condition 7 five times by failing to obey all laws, ordinances, or statutory
conditions of conditional release in August 2022 and December 22. 	DOC
Ex. A; Commission Ex. C. 	On June 11, 2023, Selway “was returned to
[DOC]’s custody as a Conditional Release Violator.” 	DOC Ex. A. 	On June
14, 2023, Selway waived his right to a violation hearing. 	Commission Ex.
D.
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On July 14, 2023, Selway filed an “Emergency Petition for Writ of
Habeas 	Corpus” 	in 	the 	Third 	Judicial 	Circuit 	Court, 	Lafayette 	County,
assigned case number 2023-CA-59. 	Commission Ex. F. 	Selway asserted
the Commission did not have jurisdiction to hold a violation hearing on July
26, 2023, and revoke his conditional release, because his supervision
expired July 14, 2023. 	Id.
On July 26, 2023, the Commission issued a Revocation of Conditional
Release Order. 	Commission Ex. E; DOC Ex. D. 	The order provides the
revocation is effective May 12, 2023, with credit for December 12, 2022,
through December 22, 2023. 	Commission Ex. E; DOC Ex. D. 	The order
further provides, “The award of credit for time on Conditional Release
was considered but denied by a majority vote of the Commission.”
Commission Ex. E; DOC Ex. D.
By order on August 4, 2023, the Third Circuit directed the Commission
to show cause within 30 days why Selway’s emergency habeas corpus
petition should not be granted. 	Commission Ex. G. 	The Commission filed
a response on September 5, 2023. 	Commission Ex. H. 	In an order
rendered September 17, 2023, the court denied Selway’s petition, explaining
that “the issuance of the warrant prior to the expiration of the conditional
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release 	period 	tolled 	the 	Petitioner’s 	conditional 	release 	period.”
Commission Ex. I.
On October 30, 2023, Selway filed an “Emergency Petition for Writ of
Certiorari” in the First District Court of Appeal (First DCA), assigned case
number 1D2023-2832, challenging the Third Circuit’s order denying his
habeas petition. 	Commission Ex. J. 	On June 10, 2024, Selway filed an
Amended Petition for Writ of Certiorari. 	Commission Ex. K. 	On August 23,
2024, the First DCA denied the petition without explanation. 	Commission
Ex. L; Selway v. Fla. Comm’n on Offender Review, 395 So. 3d 1126 (Fla. 1st
DCA 2024).
In the meantime, on January 5, 2024, Selway filed another petition for
writ of habeas corpus in the Third Circuit, assigned case number 2024-CA-
0003, challenging “the Commission’s act of forfeiting 4,139 days of gain time
on July 26, 2023, 12 days AFTER Petitioner’s prison term had expired.”
Commission Ex. M at 2. 	In an order rendered April 3, 2024, the court denied
the petition. 	Commission Ex. N. 	The court explained:
Conditional release is “a post-prison supervision program
for certain types of offenders that the legislature had determined
to be in need of further supervision after release.” 	See Rivera
v. Singletary, 707 So. 2d 326, 327 (Fla. 1998). 	The conditional
release program 	act 	is 	contained section 	947.1405, Florida
Statutes. 	Pursuant 	to that statute inmates who qualify for
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conditional release are released to community supervision for a
period 	equal 	to 	the 	amount 	of 	gain 	time 	earned 	while
incarcerated. 	See also Mayes v. Moore, 827 So. 2d 967, 971-
72 (Fla. 2002). 	If the releasee violates a term of his or her
conditional release prior to the expiration of his or her full
sentence, gain time and release may be revoked and he or she
may be returned to prison to serve the balance of his or her
sentence. 	Id.
The Petitioner violated the terms of his conditional release
on 	August 	1, 	2022, 	and 	December 	12, 	2022, 	and 	the
Commission took action to retake him on May 4, 2023, when the
warrant was issued. 	All these events took place prior to the
expiration 	of 	the 	Petitioner’s 	sentence. 	Had 	the 	Petitioner
successfully completed the terms of his conditional release and
not violated prior to July 14, 2023, his conditional release would
have ended, and his sentence would have been fulfilled. 	He
violated the terms of his conditional release prior to the expiration
of 	the 	sentence, 	however. 	The 	law 	provides 	that 	if 	a
conditional releasee violates the terms of his conditional
release prior to the expiration of his or her sentence, gain
time and release may be revoked and he or she may be
returned 	to 	prison 	to 	serve 	the 	balance 	of 	his 	or 	her
sentence. 	That is what happened to the Petitioner, and it is
consistent with the law. 	Although the Order of Revocation of
Conditional Release was not issued until July 26, 2023, after the
sentence would have been completed had the Petitioner not
violated the terms of his conditional release, the revocation was
backdated to be effective on May 12, 2023, presumably when
the warrant for the Petitioner’s retaking was served on the
Petitioner and he was returned to prison (although his Petition
does not provide this information).
The Petitioner argues that his arrest improperly tolled the
running of his conditional release term and that the law does not
provide for such tolling. 	He compares the alleged tolling to the
tolling that is permitted in certain circumstances for a sentence
of probation pursuant to section 948.06, Florida Statutes, and
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argues that no such law provides for tolling in the conditional
release program. 	Even though [the] statute does not provide for
tolling of conditional release, the Florida Supreme Court has.
See Evans v. Singletary, 737 So. 2d 505 (Fla. 1999). 	In Evans,
the Court explained, “allowing the supervision to run while the
inmate is in prison would seem contrary to legislative intent” and
“[w]e conclude, however, that there is legitimate authority for the
proposition that the supervision period should be tolled until
release from prison.” 	Evans at 507, 508. 	As a result, when the
Petitioner was taken back into custody and imprisoned on
the allegations of violations of the terms of his conditional
release, 	his 	conditional 	release 	was 	tolled 	until 	the
allegations were resolved. 	His prison sentence was not
completed, and neither was his conditional release term at
that time. 	At the time of his violation of the terms of his
conditional release, he had served less than 18 years of his
30-year sentence in prison. 	Since his conditional release
was revoked and he was not granted credit for the time
served on conditional release, he must serve the remaining
balance of this sentence in custody.
Commission Ex. N at 2-3 (bold emphasis added; citations to Petitioner’s
exhibits omitted).
Analysis
Selway filed his habeas petition in this Court pursuant to 28 U.S.C.
§ 2241, but his petition is governed by both § 2241 and § 2254 because he
is in custody pursuant to a state court judgment. 	See Medberry v. Crosby,
351 F.3d 1049, 1064 (11th Cir. 2003) (holding that both § 2241 and § 2254
apply to habeas corpus petitions filed under § 2241 where petitioner “is in
custody pursuant to the judgment of a state court”); Thomas v. Crosby, 371
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F.3d 782, 787-88 (11th Cir. 2004) (applying Medberry and indicating that
state prisoner’s habeas petition, filed on the § 2241 form and challenging
state parole commission’s setting of his presumptive parole release date,
was properly brought under § 2241 but was subject to the rules and
restrictions of § 2254, because he was in custody pursuant to state court
judgment). 	The Commission indicates Selway’s petition is timely and he
has exhausted all available state court remedies. 	ECF No. 9 at 6-11.
The Commission asserts, however, “this Court is without jurisdiction
because Petitioner has not raised any Federal Constitutional issues.” 	ECF
No. 9 at 11. 	The Commission indicates Selway’s “challenges involving the
Commission’s 	revocation 	of 	conditional 	release 	supervision 	are 	based
strictly on state law, and thus not cognizable on federal review.” 	Id.
Indeed, as the Commission points out, “[i]t is not the province of a federal
habeas 	court 	to 	reexamine 	state-court 	determinations 	on 	state-law
questions.” 	Estelle v. McGuire, 502 U.S. 62, 67 (1991).
Selway argues here, as he did in state court, that his sentence expired
on July 14, 2023, and because of that, the Commission did not have
authority, on July 26, 2023, to revoke his 4,139 days of gain time and send
him to prison. 	See ECF No. 1 at 6, ECF No. 14 at 3-4. 	He asserts he has
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been unlawfully incarcerated since July 14, 2023. 	ECF No. 14 at 4. 	As
DOC indicates in its answer, Selway has not challenged the calculation of
his gain-time or his initial release date. 	ECF No. 12 at 7.
As the state trial court explained in denying relief, at the time of his
arrest in May 2023, Selway had not completed his conditional release term.
His return to state custody tolled that term and, thus, contrary to Selway’s
argument, it did not expire on July 14, 2023. 	See Evans v. Singletary, 737
So. 2d 505, 508-09 (Fla. 1999) (holding State “may use an unexpired
Conditional Release-eligible sentence to determine the length of supervision
and then toll the running of that supervision period until the inmate has been
released from prison”).
Selway was placed on conditional release and the consequences of
his failure to abide by the conditions of his release, including the imposition
of a prison term to serve the balance of his sentence and forfeiture of gain
time, occurred in accordance with state law. 	In particular, upon revocation
of Selway’s conditional release supervision, the Commission had jurisdiction
and discretion to award, or decline to award, him credit for time served on
conditional release; the Commission considered the issue and declined to
grant Selway this credit. 	§§ 947.1405, .141 Fla. Stat. (1993); see, e.g.,
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Parole Comm’n v. Cooper, 701 So. 2d 543, 543-44 (Fla. 1997) (citing as
applicable version of Conditional Release Program statute in effect when
Cooper committed offenses); Gay v. Singletary, 700 So. 2d 1220, 1223 (Fla.
1997) (holding that Commission has “broad authority in administering the
Control Release program and . . . to either grant or deny credit for time spent
under supervision when it determines that a violation has occurred”). 	See
also, e.g., Thomas v. Moore, 797 So. 2d 1196, 1198 (Fla. 2001) (“Time spent
out of prison while under supervision should only be credited toward service
of 	the 	prison 	sentence 	when 	the 	supervisory 	period 	is 	successfully
completed.”); Evans, 737 So. 2d at 507 (explaining supervision lasts until
date on which inmate would have been released if no gain-time had been
awarded). 	Further, upon revocation of Selway’s supervision and return to
prison, he was deemed to have forfeited, and the DOC was statutorily
authorized to forfeit, all gain-time earned up to the date of his conditional
release from the DOC in March 2012. 	§§ 944.28(1), 947.141(4), Fla. Stat.
(1993); DOC Ex. A; see Evans, 737 So. 2d at 507 (“[W]hen an inmate is
released due to gain time from a sentence that is eligible for Conditional
Release, instead of going free as other offenders would do (unless they have
probation or some other supervision to follow), these offenders are placed
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on supervision for the amount of time equal to the gain time they have
accrued. 	If they violate their supervision, gain time is forfeited and the
inmate is returned to prison to continue serving the sentence(s).”); Hull v.
Moore, 790 So. 2d 560, 562 (Fla. 1st DCA 2001) (“An inmate who commits
certain types of crimes and who has served time for a prior felony or who is
sentenced as a habitual offender must be released into the conditional
release program, the length of which is determined by the number of days of
gain time awarded.”).
Based on the foregoing, Petitioner Selway has not demonstrated the
state court’s adjudication of his claim was contrary to, or an unreasonable
application of, federal law as determined by the U.S. Supreme Court, or was
based 	on 	an 	unreasonable 	determination 	of 	the 	facts. 	28 	U.S.C.
§ 2254(d)(1)-(2). 	Accordingly, his federal habeas petition should be denied.
Conclusion
Petitioner Gary Scott Selway is not entitled to federal habeas relief.
The § 2241 petition (ECF No. 1) should be denied.
Certificate of Appealability
Rule 11(a) of the Rules Governing Section 2254 Cases in the United
States District Courts provides that “[t]he district court must issue or deny a
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certificate of 	appealability when it 	enters 	a final order adverse to the
applicant,” and if a certificate is issued “the court must state the specific issue
or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2).” 	Rule
11(b) provides that a timely notice of appeal must still be filed, even if the
court issues a certificate of appealability.
State prisoners proceeding under § 2241 must obtain a certificate of
appealability to appeal a district court order. 	Sawyer v. Holder, 326 F.3d
1363, 1364 n.3 (11th Cir. 2003). 	Petitioner fails to make a substantial
showing of the denial of a constitutional right. 	28 U.S.C. § 2253(c)(2); Slack
v. McDaniel, 529 U.S. 473, 483-84 (2000) (explaining substantial showing)
(citation 	omitted). 	Therefore, 	the 	Court 	should 	deny 	a 	certificate 	of
appealability.
The second sentence of Rule 11(a) provides: “Before entering the final
order, the court may direct the parties to submit arguments on whether a
certificate should issue.” 	The parties shall make any argument as to
whether a certificate should issue by filing objections to this Report and
Recommendation.
Leave to appeal in forma pauperis should also be denied. 	See Fed.
R. App. P. 24(a)(3)(A) (providing that before or after notice of appeal is filed,
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the court may certify appeal is not in good faith or party is not otherwise
entitled to appeal in forma pauperis).
Recommendation
It 	is 	respectfully 	RECOMMENDED 	that 	Petitioner 	Gary 	Selway’s
§ 2241 petition (ECF No. 1) be DENIED. 	It is further RECOMMENDED that
a certificate of appealability be DENIED and that leave to appeal in forma
pauperis be DENIED.
IN CHAMBERS at Tallahassee, Florida, on November 14, 2025.
S/ Martin A. Fitzpatrick 	__
MARTIN A. FITZPATRICK
UNITED STATES MAGISTRATE JUDGE
NOTICE TO THE PARTIES
Within fourteen (14) days after being served with a copy of this
Report and Recommendation, a party may serve and file specific
written objections to these proposed findings and recommendations.
Fed. R. Civ. P. 72(b)(2). 	A copy of the objections shall be served upon
all other parties. 	A party may respond to another party’s objections
within fourteen (14) days after being served with a copy thereof. 	Fed.
R. Civ. P. 72(b)(2). 	Any different deadline that may appear on the
electronic docket is for the Court’s internal use only and does not
control. 	If a party fails to object to the magistrate judge’s findings or
recommendations as to any particular claim or issue contained in a
Report and Recommendation, that party waives the right to challenge
on appeal the district court’s order based on the unobjected-to factual
and legal conclusions. 	See 11th Cir. R. 3-1; 28 U.S.C. § 636.
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