SELWAY v. FLORIDA COMMISSION ON OFFENDER REVIEW et al

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
GARY SCOTT SELWAY,
Petitioner,
v. Case No. 4:25-cv-34-AW-MAF
FLORIDA COMMISSION ON
OFFENDER REVIEW and FLORIDA
DEPARTMENT OF CORRECTIONS,
Respondents.
_______________________________/
FINAL ORDER
A Florida court sentenced Petitioner Gary Scott Selway to 30 years in prison.
His sentence was set to expire July 14, 2023. Some ten years before that, the State
put Selway on conditional release until that date. Under Florida law, a person on
conditional release must comply with certain conditions, and if he does not, he can
be required to serve in prison the amount of time he was authorized to be on
conditional release. That is what happened here. Selway was arrested, had his
conditional release revoked, and was returned to prison for approximately ten more
years.
A “warrant for retaking conditional release” issued in May 2023 (ECF No. 9-
5 at 20), which was a few months before the July 14, 2023, expiration of his term.
But the actual revocation came on July 26, 2023—twelve days after that expiration.
The order said the revocation was effective May 12, 2023. ECF No. 9-5 at 31. In
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Selway’s view, the order came too late, and the State lacked authority to revoke
conditional release because his sentence already expired. The State disagrees. It
contends the warrant tolled the release date. State courts rejected Selway’s multiple
claims on this point, and Selway filed this federal habeas action.
The magistrate judge issued a report and recommendation concluding the
court should deny the petition. ECF No. 21. Selway filed objections, ECF No. 28,
and I have considered de novo the issues he raised in those objections.
In his report and recommendation, the magistrate judge analyzed the state-law
issue and concluded the state courts correctly decided it. But as Respondents argue,
Selway is not entitled to federal habeas relief without showing a violation of some
federal right. See 28 U.S.C. § 2254(a) (limiting federal habeas relief to “the ground
that [a state prisoner] is in custody in violation of the Constitution or laws or treaties
of the United States”); see also Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (“We
have stated many times that federal habeas corpus relief does not lie for errors of
state law.” (marks omitted) (quoting Estelle v. McGuire, 502 U.S. 62, 67 (1991)).
Selway insists his claim is based on federal law. In his objections, he points
to his reply, which says his detention “violates his right under the Fourteenth
Amendment.” ECF No. 14 at 4; accord ECF No. 28 at 5 (“However, the Report and
Recommendation fails to mention that within Petitioner’s reply he belied the
Commission’s assertion that he had not raised any Federal Constitutional issues.”
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(cleaned up)). But he cannot change the nature of his claim in his reply. His petition
did not frame his challenge as one based on federal law. See ECF No. 1 at 6-7 (stating
the Commission “was divested of jurisdiction” and “exceeded its scope of
authority”); accord id. at 15 (requesting relief based on the Commission’s lack of
“jurisdiction or lawful authority”). This is enough to justify denial of his petition.
Regardless, even if Selway had properly raised (and exhausted) the federal
claim, he has not shown that the state court’s interpretation of state law created a
violation of Selway’s federal rights. He has not shown that the state court’s
interpretation was “unexpected and indefensible by reference to the law which had
been expressed prior to the conduct in issue.” Rogers v. Tennessee, 532 U.S. 451,
461 (2001) (quoting Bouie v. City of Columbia, 378 U.S. 347, 354 (1964)); see also
Gibbs v. Cochran, 142 So. 2d 276, 277-78 (Fla. 1962) (concluding the Parole
Commission retained jurisdiction over a parolee after his parole terminated when the
Commission timely issued a warrant for a pretermination violation).
I now adopt the report and recommendation and incorporate it into this order
to the extent it is consistent with the discussion above. The clerk will enter a
judgment that says, “The petition is DENIED.” A certificate of appealability is
DENIED. The motion for leave to file a request for admissions (ECF No. 35) is
DENIED as moot. The motion to supplement the record (ECF No. 22) is DENIED
because the proposed supplement would make no difference.
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The clerk will close the file.
SO ORDERED on May 19, 2026.
s/ Allen Winsor
Chief United States District Judge
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