0:24-cv-62146•Bollo v. Secretary, Department of Corrections, State of Florida
Bollo v. Secretary, Department of Corrections, State of Florida
0:24-cv-62146Flsd13 de jan. de 2026
Texto completo
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA FORT LAUDERDALE DIVISION CASE NO. 24-62146-CIV-SMITH/HUNT AUGUSTINE BOLLO, Petitioner, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Respondent. __________________________________/ REPORT AND RECOMMENDATION THIS CAUSE is before this Court on Respondent’s Motion to Dismiss the Petition Based on a Lack of Jurisdiction. ECF No. 18. The Honorable Rodney Smith referred Plaintiff’s Motions to the undersigned for a report and recommendation. ECF No. 11; see also 28 U.S.C. § 636; S.D. Fla. L.R., Mag. R. 1. Upon thorough review of Respondent’s Motion, the response thereto, the case file, and applicable law, the undersigned respectfully RECOMMENDS that Respondent’s Motion be GRANTED for the reasons set forth below. Respondent claims this Court lacks jurisdiction over Petitioner’s claims because he is not “in custody” for the purpose of 28 U.S.C. § 2254. The “in custody” requirement of § 2254(a) is jurisdictional, so we must address it first and before any merits-related matters like the applicable statute of limitations. Clements v. Fla., 59 F.4th 1204, 1209 (11th Cir. 2023). Section 2254(a) of Title 28 states, in relevant part: Case 0:24-cv-62146-RS Document 22 Entered on FLSD Docket 01/13/2026 Page 1 of 5
2 [A] district court shall entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). “[T]he ‘in custody’ requirement means ‘that the habeas petitioner [must] be “in custody” under the conviction or sentence under attack at the time his petition is filed.’” Birotte v. Sec’y for Dep’t of Corr., 236 F. App’x 577, 578 (11th Cir. 2007) (quoting Maleng v. Cook, 490 U.S. 488, 490–91 (1989)). The Eleventh Circuit has observed that “once the sentence imposed for a conviction has completely expired, the collateral consequences of that conviction are not themselves sufficient to render an individual ‘in custody’ for the purposes of a habeas attack upon it.” Id. (quoting Maleng, 490 U.S. at 492). In the case underlying this Petition, Petitioner was charged with one count of lewd or lascivious molestation. Following a jury trial, Petitioner was sentenced to 51 months’ imprisonment, and as a result of the conviction was required to register on Florida’s sex offender registry. Petitioner has completed his prison sentence, but he remains subject to the registry requirements. Petitioner recognizes that the in-custody issue may be dispositive in this case. ECF No. 17 at 1. Plaintiff maintains that despite not being imprisoned, he is nonetheless “in custody” due to the residency restrictions imposed by his sex offender status. As Petitioner recognizes, the Eleventh Circuit Court of Appeals considered and rejected a similar argument in Clements v. Florida, 59 F.4th 1204 (11th Cir. 2023). ECF No. 1 at 22. Petitioner further acknowledges that Clements is binding on this court. Id. However, Petitioner argues that he is raising an argument not considered by the Clements court, Case 0:24-cv-62146-RS Document 22 Entered on FLSD Docket 01/13/2026 Page 2 of 5
3 namely that he is “in custody” in part due to the separate residency restrictions imposed by his sex offender status and by state and local laws. The Eleventh Circuit has explicitly acknowledged that, even after Clements, sex offender residency restrictions “present a potential custodial constraint on [Petitioner’s] liberty, and our Court explicitly left open the consideration of the restrictions.” Clements v. Sec’y, Dep’t of Corr., No. 24-11353, 2025 WL 1892401, at *2 (11th Cir. July 9, 2025). In support of his argument, Petitioner has filed what he defines as an analysis by forensic computer scientist, John D. Sawicki, which Petitioner argues demonstrates that Petitioner is excluded from the vast majority of the three largest cities in Sumter County, his county of residence. ECF No. 17-1. The analysis consists of six maps allegedly demonstrating the numerous areas from which Petitioner is excluded due to the residency restrictions imposed by his status. Under this analysis, Petitioner argues, he is effectively in custody for the purposes of a § 2254 petition. Respondent objects to this Court’s consideration of the Sawicki analysis, as the report is not sworn and no affidavit accompanies it, and it was not presented to the state court. As for the argument that this is new evidence not brought prior to the current Petition, the Eleventh Circuit has explicitly allowed “district court[s] to permit the parties the opportunity to develop the record as to the restrictions imposed by Florida’s sex- offender residency requirements.” Clements, 2025 WL 1892401, at *3. More concerning is Respondent’s observation that Petitioner’s Supplement has no supporting affidavits, no curriculum vitae, and no report explaining the methodology, analysis, and findings. A court may when reviewing a Motion to Dismiss “consider matters outside the pleadings if presented in proper form by the parties.” MGC Commc’ns, Inc. Case 0:24-cv-62146-RS Document 22 Entered on FLSD Docket 01/13/2026 Page 3 of 5
4 v. BellSouth Telecomms., Inc., 146 F. Supp. 2d 1344, 1349 (S.D. Fla. 2001). However, “an unsworn representation is not evidence that meets Defendant’s burden to establish that federal jurisdiction exists.” Hughes v. Fam. Dollar Stores of Fla., LLC, No. 3:23-CV- 784-MMH-MCR, 2023 WL 4784123, at *2 (M.D. Fla. July 27, 2023). Petitioner stated that a sworn report would be forthcoming, but the record does not reflect that any such report was ever filed. As it stands, then, the undersigned finds that the Sawicki analysis is not properly before this Court for consideration.1 Without that analysis, Petitioner offers no evidence whatsoever that the residence requirements are so limiting as to present a potential custodial constraint on Petitioner’s liberty. Plaintiff has therefore failed to demonstrate that he is in custody for the purposes of his § 2254 petition, and the Court lacks jurisdiction to consider his petition. RECOMMENDATION Based on the foregoing, the undersigned RECOMMENDS Respondent’s Motion to Dismiss the Petition Based on a Lack of Jurisdiction, ECF No. 18, be GRANTED, and the Petition dismissed. Within fourteen (14) days after being served with a copy of this Report and Recommendation, any party may serve and file written objections to any of the above findings and recommendations as provided by the Local Rules for this district. 28 U.S.C. § 636(b)(1); S.D. Fla. Mag. R. 4(b). The parties are hereby notified that a failure to timely object waives the right to challenge on appeal the District Court’s order based on 1 As is, even were the Court to consider the maps, they appear on the surface to be of little help to Petitioner. Of course, absent explanatory documents, it is difficult to surmise the value of the maps. And to be sure, the Sawicki analysis does show that portions of the cities would be off limits to Petitioner, but they do not appear to demonstrate that Petitioner is effectively shut out of the mapped areas. Case 0:24-cv-62146-RS Document 22 Entered on FLSD Docket 01/13/2026 Page 4 of 5
5 unobjected-to factual and legal conclusions contained in this Report and Recommendation. 11th Cir. R. 3–1 (2018); see Thomas v. Arn, 474 U.S. 140 (1985). DONE AND SUBMITTED at Fort Lauderdale, Florida this 13th day of January 2026. _____________________________________ PATRICK M. HUNT UNITED STATES MAGISTRATE JUDGE Copies furnished to: Honorable Rodney Smith All Counsel of Record Case 0:24-cv-62146-RS Document 22 Entered on FLSD Docket 01/13/2026 Page 5 of 5
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