MOLLICA v. WARDEN CROSS CITY CORRECTIONAL INSTITUTION

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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.
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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.
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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
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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
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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
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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
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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
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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.
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