Washington v. Clarke
Filing
14
MEMORANDUM OPINION. Signed by District Judge Gerald Bruce Lee on 11/22/2013. (rban, )
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
Richard T. Washington,
Petitioner,
l:12cv!400(GBL/IDD)
v.
Harold W. Clarke,
Respondent.
MEMORANDUM OPINION
THIS MATTER is before the Court on respondent's motion to dismiss Richard T.
Washington's pro se petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254. This
case concerns Washington's challenge to the Court & Legal Sections of the Virginia Department
of Corrections' ("VDOC") calculation of his earned sentence credits and its calculation of his
active sentence. Respondent filed his motion to dismiss on April 9, 2013, and petitioner was
given the opportunity to file responsive materials, pursuant to Roseboro v. Garrison, 528 F.2d
309 (4th Cir. 1975). Petitioner has filed no reply. Upon careful review, the Court finds that this
habeas corpus application must be dismissed because petitioner does not have a liberty interest in
VDOC's calculation of his earned sentence credits.
I. Background
On September30, 2009, the County of Henrico, Virginia's Sheriffs Department arrested
petition and incarcerated him at the Henrico County Jail West. Typed compl. f 1; resp't's mot
dismiss 1|14. On April 28, 2010, the Henrico County Circuit Court sentenced Petitioner to five
years with four years suspended for unlawful wounding and five years for possession of a
firearm by felon with violent offense. Typed compl. 12; resp't's mot dismiss 19. Petitioner's
total active sentence was six years. Id. The Henrico County Jail West retained responsibility for
petitioner until July 7, 2010, the day on which petitioner became a state responsible inmate.
Typed compl. f 1; resp't's mot dismiss |10. Pursuant to Va. Code § 53.1-202.2, petitioner was
entitled to earned sentence credits while incarcerated at Henrico County Jail West. Typed compl.
ffl| 4, 6; resp't's mot dismiss %15.
Petitioner argues his sentence is being calculated in a manner that extends his active jail
time by two days, in violation of his Fourteenth Amendment rights. Typed compl. ^ 8. In
support, he makes two claims: (1) that the VDOC "has deprived him of two (2) days ofjail
credits," typed compl. 1) 8, for "the 281 days he actually spent in the custody of the Henrico
County Jail," id. at K2, and (2) that "the Court & Legal Sections of the VDOC utilized a contrary
calculating system to extend Petitioner's release date," id. at K6. Respondent argues that
petitioner's first claim regarding the two days ofjail credit was not exhausted, resp't's mot
dismiss ^ 3, and that "petitioner's time computation record has been accurately computed," id. U
16.
II. Exhaustion and Procedural Bar
In reviewing a petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254,
a federal court must first determine whether the petitioner has exhausted his claims before the
appropriate state courts and whether those claims are barred by a procedural default. As a general
rule, a federal petitioner must first exhaust his claims in state court because exhaustion is a
matterof comity to the state courts; failure to exhaust a claim requires its dismissal by the federal
court. See 28 U.S.C. § 2254(b); Granberrv v. Greer. 481 U.S. 129, 134 (1987); Rose v. Lundv.
455 U.S. 509, 515-19 (1982). To comply with the exhaustion requirement, a state prisoner "must
give the state courts one full opportunity to resolve any 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). Thus, in Virginia, a § 2254 petitioner must first have presented the same
factual and legal claims to the Supreme Court of Virginia either by way of a direct appeal, a
state habeas corpus petition, or an appeal from a circuit court's denial of a state habeas petition.
Matthews v. Evatt. 105 F.3d 907, 910-11 (4th Cir. 1997) (quoting Picard v. Connor. 404 U.S.
270, 275-78 (1971) for the proposition that for a claim to be exhausted, "both the operative facts
and the 'controlling legal principles' must be presented to the state court."); see Pruett v.
Thompson. 771 F.Supp. 1428, 1436 (E.D.Va. 1991), affd 996 F.2d 1560 (4th Cir. 1993)
(exhaustion requirement is satisfied when "allegations advanced in federal court... [are] the same
as those advanced at least once to the highest state court.").
Applied here these principles compel the conclusion that petitioner's first claim, that the
VDOC has deprived him of two days ofjail credits, is procedurally barred from federal review
because petitioner has never presented it to the Virginia Supreme Court; the claim remains
unexhausted. See mem sup. def s mot dismiss at ex. A 6-8; Matthews. 105 F.3d at 910.
Moreover, it is clear that this claim would now be barred if petitioner attempted to bring it in the
state forum, as it would be both untimely and successive, in contravention of Va. Code §§ 8.01654(A)(2) and 8.01-654(B)(2), respectively. Since the Fourth Circuit has "held on numerous
occasions that the procedural default rule set forth in § 8.01-654(B)(2) constitutes an adequate
and independent state-lawground for decision," Mackall v. Angelone. 131 F.3d 442,446 (4th
Cir. 1997), petitioner's first claim is procedurally defaulted from federal consideration.
Federal courts may not review barred claims absent a showing of cause and prejudice or a
fundamental miscarriage ofjustice, such as actual innocence. Harris v. Reed. 489 U.S. 255, 260
(1989). The existence of cause ordinarily turns upon a showing of (1) a denial of effective
assistance of counsel, (2) a factor external to the defense which impededcompliance with the
state procedural rule, or (3) the novelty of the claim. See Coleman. 501 U.S. at 753-54; Clozza
v. Murrav. 913 F.2d 1092, 1104 (4th Cir. 1990); Clanton v. Muncv. 845 F.2d 1238, 1241-42 (4th
Cir. 1988). Importantly, a court need not consider the issue of prejudice in the absence of cause.
See Kornahrens v. Evatt. 66 F.3d 1350, 1359 (4th Cir. 1995), cert, denied. 517 U.S. 1171 (1996).
In this case, petitioner makes no showing of cause and prejudice or a fundamental miscarriage of
justice. Thus, petitioner's first claim is procedurally barred from consideration on the merits.
III. Standard of Review
Where a state court has addressed the merits of a claim raised in a federal habeas petition,
a federal court may not grant habeas relief unless the state court's adjudication is contrary to, or
an unreasonable application of, clearly established federal law, or is based on an unreasonable
determination of the facts. 28 U.S.C. § 2254(d). The evaluation of whether a state court decision
is "contrary to" or "an unreasonable application of federal law is based on an independent
review of each standard. Williams v. Taylor. 529 U.S. 362, 412-13 (2000). A state court
determination meets the "contrary to" standard if it "arrives at a conclusion opposite to that
reached by [the United States Supreme] Court on a question of law or if the state court decides a
case differently than [the United States Supreme] Court has on a set of materially
indistinguishable facts." Williams. 529 U.S. at 413. Under the "unreasonable application"
clause, the writ should be granted if the federal court finds that the state court "identifies the
correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies
that principle to the facts of the prisoner's case." Id Moreover, this standard of reasonableness is
an objective one. Id. at 410.
IV. Analysis
In his second claim, petitioner asserts that his Fourteenth Amendment rights were
violated because the Court & Legal Sections of the VDOC improperly calculated his earned
sentence credits. Typed compl. % Specifically, petitioner argues that "in violation of [Va.
6.
Code] § 53.1-202.2, the Court and Legal Sections of the VDOC utilized a contrary calculating
system to extend Petitioner's release date to December 8, 2014." Id When petitioner raised this
claim in his state habeas petition, the Virginia Court of Appeals denied the claim stating:
The Court holds that this [claim] which concerns the rate at which
petitioner's good conduct or sentence credit is calculated, is not
cognizable in a petition for a writ of habeas corpus because an
order entered in petitioner's favor ... will not result in an order
interpreting convictions or sentences that, on its face and standing
alone, will directly impact the duration of the petitioner's sentence.
Washington v. Dir. Dep't Corr.. R. No. 111899 (Va. May 29, 2013). The Fourteenth Amendment
provides, in part, that a state shall not "deprive any person of life, liberty, or property, without
due process of law." U.S. Const, amend. XIV, § 1 ("Due Process Clause"). To satisfy the
"elementary and fundamental requirements] of due process," individuals are entitled to notice
and an opportunity to be heard concerning any deprivation of life, liberty, or property. Mullane
v. Cent. Hanover Bank & Trust Co.. 339 U.S. 306, 314 (1950). The Due Process Clause, thus,
applies when government action deprives an individual of a legitimate liberty or property
interest. Bd. of Regents of State Colls, v. Roth. 408 U.S. 564, 569, 92 S.Ct. 2701, 33 L.Ed.2d
548 (1972). Liberty interests"may arise from the Constitution itself, by reason of guarantees
implicit in the word liberty,... or [they] may arise from an expectation or interest created by state
laws or policies." Wilkinson v. Austin. 545 U.S. 209, 221, 125 S.Ct. 2384, 162 L.Ed.2d 174
(2005) (internal citations and quotations omitted). Virginia law does not create a liberty interest
in receiving earned sentence credits to gain an early release from a prison sentence. Puranda v.
Johnson. No. 08-687, 2009 WL 3175629, at * 5 (E.D. Va. Sept. 30, 2009).
As petitioner does not have a liberty interest in receiving earned sentence credits to gain
an early release from prison, Puranda. No. 08-687 at *5, the VDOC could not have violated his
Fourteenth Amendment due process rights becausethe due process clause does not apply to
VDOC's actions, see Bd. of Regents of State Colls.. 408 U.S. at 569. For that reason, the state
courts' rejection of Washington's argument was neither contrary to nor an unreasonable
applicationof the controlling federal law becausethe Supreme Court of Virginia did not "arrive[]
at a conclusion opposite to that reached by [the United States Supreme] Court on a question of
law." Williams. 529 U.S. at 413. Thus, the same result must be reached here. Williams. 529 U.S.
at 412-13.
V. Conclusion
For the above-stated reasons, respondent's Motion to Dismiss will be granted. An
appropriate order shall issue.
Entered this ^^™day of /Vr**fc-
2013.
M
Gerald Bruce Lee
United States District Judge
Alexandria, Virginia
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