REPORT AND RECOMMENDATION

ELIZABETH M. TIMOTHY, Magistrate Judge.

This cause is before the court on an amended petition for writ of habeas corpus filed under 28 U.S.C. § 2254 (ECF No. 9). Respondent filed an answer seeking dismissal of the petition (ECF No. 17). Petitioner filed a response (see ECF Nos. 20, 21).

The case was referred to the undersigned for the issuance of all preliminary orders and any recommendations to the district court regarding dispositive matters. See N.D. Fla. Loc. R. 72.2(B); see also 28 U.S.C. § 636(b)(1)(B), (C) and Fed. R. Civ. P. 72(b). After careful consideration of all issues raised by the parties, it is the opinion of the undersigned that no evidentiary hearing is required for the disposition of this matter, Rule 8(a), Rules Governing Section 2254 Cases. It is further the opinion of the undersigned that the pleadings and attachments before the court show that Petitioner is not entitled to federal habeas relief.

I. BACKGROUND AND PROCEDURAL HISTORY

Petitioner was convicted in the Circuit Court in and for Levy County, Florida, Case No. 2014-CF-545, pursuant to a no contest plea, of one cont of lewd or lascivious exhibition (see ECF No. 9). Petitioner was sentenced to time in the county jail and a term of sex offender probation, supervised by the Florida Department of Corrections ("FDOC") (see ECF No. 9 at 1).

On September 14, 2015, Petitioner filed a motion for modification of probation (see ECF No. 9 at 2, 5, 17). Following a hearing on October 21, 2015, the trial court denied Petitioner's motion (see id. at 17).

On February 16, 2016, Petitioner filed another motion/request to modify and/or terminate his probation (see ECF No. 9 at 16). The trial court denied Petitioner's motion in an order rendered February 18, 2016 (see id.).

Petitioner filed the instant federal habeas action on March 9, 2016 (see ECF No. 1).

II. ANALYSIS

In this federal habeas action, Petitioner raises the following single claim in his amended petition:

(ECF No. 9 at 5). Petitioner then explains, in three letters to the court attached to his amended petition, that he never sexually touched or battered a child, never touched himself sexually in the presence of a child, and never asked a child to touch him; instead, he simply "flashed" his penis for approximately five seconds to his step-daughter, who was under the of age 16 at the time (id. at 18-24). Petitioner contends that his offense conduct does not warrant or qualify for the imposition of sex offender probation, including the restriction on contact with his three children, the restriction on his use of the internet, the requirement that he attend sex offender counseling, and the requirement that he comply with sex offender registration requirements (see ECF No. 9 at 5, 18-24). As relief, Petitioner seeks modification of the terms of his probation or vacatur of the probationary part of his sentence (see id.).

Respondent filed a motion for more definite statement (ECF No. 12). In response, Petitioner asserts that the original charging document should have been dismissed, because it charged him under the wrong statutory section, Florida Statutes § 800.04(7)(c) (which applies to offenders under the age of 18 years and is a third degree felony), instead of § 800.04(7)(b) (which applies to offenders over the age of 18 and is a second degree felony) (see ECF No. 15 at 3-4). Petitioner submitted a copy of the original charging document, which alleged that Petitioner was 51 years of age, but incorrectly cited § 800.04(7)(c), instead of 800.04(7)(b) (see ECF No. 20 at 9). Petitioner concedes that the State subsequently corrected the error in the charging document (see ECF No. 21 at 3-4).

Respondent filed an answer, seeking dismissal of the amended §2254 petition on the following grounds: (1) Petitioner is not "in custody" for purposes of the federal habeas statute; (2) the Secretary of the FDOC is not the proper Respondent; (3) Petitioner failed to exhaust his state court remedies prior to commencing this action; and (4) Petitioner's challenge to the terms of his probation is purely a state law issue, not a federal issue for which federal habeas relief may be granted under § 2254 (see ECF No. 17).

In Petitioner's reply to Respondent's answer, Petitioner states that although he is not in jail, he is in FDOC custody by virtue of the agency's supervising his probation, and as evidenced by the fact that he has been assigned an FDOC number, #L08885 (ECF No. 20 at 4). Petitioner also asserts new challenges to his conviction and sentence, including: (1) his pre-trial bond was excessive, in violation of the Eighth Amendment; (2) the public defender never investigated the case; (3) the police report included inaccurate information, in violation of the Fifth Amendment; (4) the sentence was excessive in light of the offense conduct, in violation of the Eighth Amendment; (5) the State denied his request for audio tapes of interviews with witnesses, in violation of the Sixth Amendment; and (6) the evidence was insufficient to support the charge (ECF No. 20 at 2-3, 6-8; ECF No. 21 at 3). With regard Respondent's exhaustion defense, Petitioner states he is "trying to appeal my case on a few grounds" (ECF No. 21 at 2-3).

Initially, the court rejects Respondent's contention that Petitioner is not in FDOC custody. Petitioner is on felony probation, which is supervised by the FDOC's Gainesville Circuit Office. Indeed, Petitioner has been assigned an FDOC number, #L08885. See http://www.dc.state.fl.us/ (search Supervised Population Information Search, DC Number L08885). Petitioner is thus "in custody," for purposes of § 2254(a). See Duvallon v. Florida, 691 F.2d 483, 485 (11th Cir. 1982) ("In the context of habeas proceedings, the `in custody' requirement may also be met where a petitioner is on probation, parole or bail.") (citations omitted). Further, under 28 U.S.C. § 2242, either the Secretary of the FDOC or Petitioner's probation officer (an employee of the FDOC) is the proper Respondent in this habeas action, just as the Secretary or the warden of the facility where a habeas petitioner is detained is the proper Respondent in a habeas action brought by a prisoner. See Squire v. Fulwood, 75 F.Supp.3d 548, 550 (D.D.C. Dec. 2014) (citing Jones v. Cunningham, 371 U.S. 236, 243, 83 S.Ct. 373, 9 L. Ed. 2d 285 (1963)); Matthews v. Meese, 644 F.Supp. 380, 381 (D.D.C. 1986) ("custodian of a parolee is his . . . parole officer). Therefore, the court rejects Secretary Jones' argument that she is not a proper Respondent.

However, the court agrees with Respondent that Petitioner's challenge to the terms and conditions of his probation is purely a state law issue, not a federal issue for which federal habeas relief may be granted under § 2254. Section 2254(a) of Title 28 provides that "a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court" upon a showing that his custody is in violation of the Constitution or laws of the United States. Thus, federal habeas relief is available to correct only constitutional injury. 28 U.S.C. § 2254(a); Swarthout v. Cooke, 562 U.S. 216, 219, 131 S.Ct. 859, 178 L. Ed. 2d 732 (2011) ("The habeas statute unambiguously provides that a federal court may issue a writ of habeas corpus to a state prisoner only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.") (internal quotations and citations omitted); Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L. Ed. 2d 385 (1991) ("[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions."). "Questions of state law rarely raise issues of federal constitutional significance, because `[a] state's interpretation of its own laws provides no basis for federal habeas corpus relief, since no question of a constitutional nature is involved.'" Tejada v. Dugger, 941 F.2d 1551, 1560 (11th Cir. 1991) (quoting Carrizales v. Wainwright, 699 F.2d 1053 (11th Cir. 1983)).

The legality of the terms and conditions of Petitioner's probation imposed by the trial court (for example, the restriction on Petitioner's contact with his three children, the restriction on his use of the internet, the requirement that he attend sex offender counseling, and the requirement that he comply with sex offender registration requirements) is a matter of state law. Florida Statutes § 948.30 provides, in relevant part:

Fla. Stat. § 948.30(1)(c), (e), (h). Additionally, under Florida law, the sexual offender registration requirements are mandatory for a violation of § 800.04. See Fla. Stat. § 943.0435(1)(h)a.

Petitioner's challenge to the trial court's imposition of certain terms and conditions of his probation does not raise an issue of federal constitutional significance. Therefore, Petitioner is not entitled to federal habeas relief on the claim asserted in his amended § 2254 petition.

In Petitioner's reply brief and supplement thereto, he urges this court to consider wholly different challenges to his conviction and sentence, including: (1) his pre-trial bond was excessive, in violation of the Eighth Amendment; (2) the public defender never investigated the case; (3) the police report included inaccurate information, in violation of the Fifth Amendment; (4) the sentence was excessive in light of the offense conduct, in violation of the Eighth Amendment; (5) the State denied his request for audio tapes of interviews with witnesses, in violation of the Sixth Amendment; and (6) the evidence was insufficient to support the charge (even though Petitioner admits he intentionally "flashed" his step-daughter (see ECF No. 9 at 22)) (ECF No. 20 at 2-3, 6-8; ECF No. 21 at 3).

Petitioner's amended § 2254 petition did not present any of these constitutional issues (see ECF No. 9). And any attempt by Petitioner to amend his amended § 2254 petition to include federal constitutional challenges to his conviction and sentence would run squarely into the doctrines of exhaustion and procedural default. In one of Petitioner's filings (a supplement to his reply brief, filed on August 18, 2016), Petitioner states he is "trying to appeal my case on a few grounds" (ECF No. 21 at 2-3). However, on September 28, 2016, the Florida First District Court of Appeal denied Petitioner's petition for belated appeal, and dismissed the appeal as untimely. See Stark v. State, ___ So. 3d ___, 2016 WL 5477876, at *1 (Fla. 1st DCA Sept. 28, 2016) (Mem). Therefore, any claims Petitioner sought to raise in his appeal, and any claims he was required to raise under state law, or be precluded from doing so in the future, would be procedurally defaulted if Petitioner asserted them in this federal habeas action. It would thus be futile to permit Petitioner to amend his amended § 2254 petition to assert those claims.

It would also be futile to permit Petitioner to amend his amended § 2254 petition to assert claims that he was not required to raise on direct appeal, for example, his claim of ineffective assistance of counsel based upon the public defender's failure to investigate the case. Petitioner has an avenue available in state court to assert such a claim, specifically, a motion for post-conviction relief under Rule 3.850 of the Florida Rules of Criminal Procedure. There is no indication that Petitioner has pursued that remedy. Amending the amended § 2254 petition to add claims cognizable in a Rule 3.850 motion would render the petition subject to dismissal as a "mixed" petition. See Piller v. Ford, 542 U.S. 225, 233, 124 S.Ct. 2441, 159 L. Ed. 2d 338 (2004) (quoting Rose v. Lundy, 455 U.S. 509, 510, 102 S.Ct. 1198, 71 L. Ed. 2d 379 (1982)).

III. CONCLUSION

The only claim asserted in Petitioner's amended § 2254 petition raises a purely state law issue, and thus provides no basis for federal habeas relief. Permitting Petitioner to amend his amended § 2254 petition with the claims asserted in his reply would be futile, as any such claims would be subject to dismissal pursuant to the doctrines of exhaustion and procedural default.

IV. 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 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)." A timely notice of appeal must still be filed, even if the court issues a certificate of appealability. Rule 11(b), Rules Governing Section 2254 Cases.

The undersigned finds no 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, 120 S.Ct. 1595, 1603-04, 146 L. Ed. 2d 542 (2000) (explaining how to satisfy this showing) (citation omitted). Therefore, the undersigned recommends that the district court deny a certificate of appealability in its final order.

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." Thus, if there is an objection to this recommendation by either party, that party may bring this argument to the attention of the district judge in the objections permitted to this report and recommendation.

Accordingly, it is respectfully RECOMMENDED:

1. That Petitioner's amended petition for writ of habeas corpus (ECF No. 9) be DENIED.

2. That a certificate of appealability be DENIED.