McEvily v. Johnson

Filing 12

REPORT AND RECOMMENDATIONS re 8 MOTION to Dismiss filed by Gene M. Johnson, 1 Petition for Writ of Habeas Corpus filed by Michael McEvily. Signed by Magistrate Judge James E. Bradberry and filed on 6/3/09. Copy mailed to petitioner, ECF to counsel, 6/4/09(mwin, )

UNITED

STATES

DISTRICT

COURT

FOR THE EASTERN DISTRICT OF VIRGINIA Norfolk Division

MICHAEL MCEVILY,

#339637
Petitioner,

v#

2:08CV520

GENE M.

JOHNSON,

Director of the

Virginia Department of Corrections,
Respondent.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

This

matter

was

initiated

by

petition

for

writ

of

habeas

corpus

under

28

U.S.C.

§

2254.

The

matter

was

referred

to

the

undersigned United States Magistrate Judge pursuant to the provisions of

28 U.S.C.

§ 636(b)(1)(B)

and

(C),

and Rule 72 of the Rules of the United

States District Court

for
I.

the Eastern District of Virginia.
STATEMENT OF THE CASE

A.

Background

Petitioner

is

presently

incarcerated

in

the

Coffeewood

Correctional Center,
August

serving sentences
9, 2004, in

for multiple convictions between
Fairfax County

26 and December

the Circuit Courts of

and

Prince

William
the

County.

Petitioner

does

not,

in

this

proceeding,

challenge any of

underlying convictions.

On December 13,

2007,

petitioner filed a petition for writ of
alleging that: (1) he was

habeas corpus in the Supreme Court of Virginia,
not given due process
29, 2007; (2) he was

during a
not

classification
scoring,

review hearing on October
resulting in a reduction

given proper

in

his

class

level

and good

time

credits;

(3)

he

was

not

provided with

a treatment plan upon his arrival at Coffeewood Correctional Center;
(4) the Virginia Department of Corrections (VDOC)

and

had incorrectly applied

good time

credits

to

his

misdemeanor

sentences.
2008,

On

May

27,

2008,

the

petition was refused,
was denied.

and on September 17,

a petition for rehearing

On or about November 24, writ
time

2008,l petitioner filed a petition for Court of Fairfax
in this

of habeas
respondent

corpus
filed

in

the

Circuit
to

County.
case, the

At

the

his

motion

dismiss

state

petition was still pending.

On October 27, habeas corpus

2008,

petitioner filed a petition February 10, 2009,

for writ of filed

in this Court,

and on

respondent

a

motion

to

dismiss

and

Rule

5

answer.

This

matter

is

now

ripe

for

consideration.

B.

Grounds Alleged

Petitioner 1.

alleges

the

following grounds: release date by two
date should be

The VDOC miscalculated petitioner's
days (petitioner alleges his

release

June

23,

2009,

rather

than June

25,

2009);

and

2.

Petitioner's costs in pursuing his habeas petitions must
be reimbursed by respondent pursuant to 42 U.S.C.A. § 1988(b) (2000) .

II.

FINDINGS

OF FACT AND

CONCLUSIONS

OF LAW

A.

Motion

to Dismiss

Standard

In ruling on

a motion to dismiss

for failure

to state a claim

upon which relief can be granted,

the complaint is construed in the light

most favorable to the plaintiffs and their allegations are taken as true.
See Brower v. Rhodes, 421 County of 232, Invo, 489 U.S. 593, 598 v. (1989)(citing Scheuer v. McKeithen, 395 it U.S. 411, to

416 U.S. The

236

(1974));

Jenkins

(1969).

complaint

should not be

dismissed unless

appears

1

petition was

This petition was filed almost one month after the instant filed, and the Court is not aware of the claims raised therein.

a certainty that the plaintiff can prove no facts in support of his claim

which 45-46
543,

would entitle (1957);
548 (4th Orq.,

him

to

relief.

See

Conlev

v.

Gibson. v.
v.

355

U.S. 247

41, F.3d

GE

Inv.

Private
2001); F.2d

Placement

Partners

II

Parker,
Int'l The

Cir. 991

Martin 94, 97

Marietta (4th Cir.

Corp.

Telecomms. courts must

Satellite

1993).

construe

the

complaint

liberally

in

favor

of

the

plaintiffs,

even

if

recovery the court

appears

remote

and

unlikely. the

In

ruling in

on the

a

12(b)(6) complaint

motion, but may
See
Cir.

primarily

considers

allegations

consider attached exhibits
Simons v. Montgomery

and documents
Police

incorporated by reference.
762 F.2d 30, 31 (4th

County

Officers.

1985);

Wolford v.
B.

Budd Co..

149

F.R.D.

127,

129-32
Court

(W.D.

Va.

1993).

Standard of Review

for State

Findings

The corpus

federal

statute that:
for

regarding

review

of

state

court

habeas

actions provides
An

application

a

writ

of

habeas

corpus

on

behalf respect

of to

a

person claim

in

custody was

pursuant

to on

the the

judgment of a State court shall not be granted with
any that adjudicated

merits

in

State

court

proceedings

unless

the

adjudication of (1)

the claim--

resulted in a decision that was contrary to,
clearly

or involved an unreasonable application of,

established
Supreme

Federal
of the

law,
United

as

determined
or

by

the

Court

States;

(2)

resulted in

a decision that was based on an

unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d)(2000).
This standard, 1996 adopted (AEDPA), by the Antiterrorism 104-132,
§

and

Effective

Death Penalty Act of
the Fourth Circuit's

Pub.L.No.
of 28

is consistent with
prior to the

interpretation

U.S.C.

2254(d)

passage

of

the

new

law.

In

Fields

v.

Murray,

49

F.3d

1024

(4th

Cir.

1995),

the court held that a review of a state court
to a presumption of correctness, compels

finding,
habeas

which is
court to

entitled

the

accord a high measure of deference to the state court. 33 frit-ina Rushen v. Spain. 598 (1982)). 464 U.S. 114, 120

See id. at 1032-

(1983); Sumner v. Mata. 455 459 U.S. 422

U.S. 591,
(1983),

As stated in Marshall v. Lonberaer.

"[t]his deference requires that a federal habeas court more than

simply

disagree

with

the

state it []

court

before

rejecting that the

its

factual court's

determinations.

Instead, 'fair

must

conclude

state Id.

findings lacked even
C.

support'

in the record."

at 432.

Petitioner's Claim is Exhausted and is Subject to Federal Review. requirement dictates that a petitioner must

The

exhaustion

first present his claims for relief to state courts before a petition for
habeas corpus may be granted by the federal courts.

(b) (1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to

the judgment of a State court shall not be granted
unless it appears that--

(A)
available

the applicant has exhausted the remedies
in the courts of the State; or

(B) (i)
State

there

is

an

absence
or

of

available

corrective

process;

(ii)

circumstances exist

that

render such

process

ineffective

to

protect

the

rights

of

the

applicant.

(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if
he has the right under the law of the State to

raise,

by

any

available

procedure,

the

question

presented.

28

U.S.C.

§§ 2254(b)-(c) (2000) .

A claim raised in a federal petition for writ of habeas corpus

must

be

the
v.

same

claim
404

as

that
270, v. F. 459

presented
275-76

in

state

proceedings.
v. 325 Va. v. Davis, (4th 2000); Henry.

See
421 Cir. see 513

Picard U.S.

Connor, 487

U.S.

(1971); 184

Pitchess F.3d 320, (E.D. Duncan

482,

(1975);

Joseph 113

Anqelone, Supp.2d U.S. 4, 941, 6

1999); also

Beck v. Anderson

Anaelone, v.

960-61

Harless,

(1982);

U.S.

364,

365

(1995);

Satcher

v.

Pruett,

126

F.3d

561,

573

(4th

Cir.

1997).

Respondent argues

that petitioner has not exhausted his claim release date to the Supreme Court of
While petitioner December may 13, not 2007, have that

regarding the miscalculation of his
Virginia, but the Court in his

disagrees. state

specifically stated

petition

filed

his 23,
in

release date 2009,
the

had been 25,
of

incorrectly calculated by two days he clearly
date. the

(from June an error
the is

to June

2009),
his

claimed that
The Court and

there was

calculation of the

release

gives petitioner that it

benefit

doubt

regarding

claim

determines

exhausted.

D. Even
moot. Since

Claim is Moot claim is exhausted,
release

though

petitioners'

the
date

issue
has

is

petitioner's

anticipated

mandatory

been

corrected
'live'

from June

25,

2009
lacks

to June 23,
a v. 395 legally

2009,

the

issue

is

"no

longer
in the

and

petitioner U.S. Parole v.

cognizable 445 496 U.S.

interest 388, 396

outcome." (quoting

Comm'n

Geraqhtv, U.S. 486,

(1980)

Powell

McCormack,

(1969)).

Therefore,

petitioner's claim is MOOT,
E. Petitioner

and the petition should be DISMISSED.
Relief Under 42 U.S.C S 1988.

Seeks

Petitioner

seeks

reimbursement

of

his

costs

associated

with

this litigation.

The statute petitioner relies upon states that a court

may,

in

its

discretion,

award

reasonable

attorney's

fees

to

the

prevailing party in certain enumerated civil rights actions.

However,

federal habeas petitions under 28 U.S.C. § 2254 are not among the actions

eligible under § 1988 for the award of attorney's fees.
1988 (b) (2000); More Larsen v. siftiaff. was 702 F.2d 116, not 118

42 U.S.C.A. §
(7th Cir. by 1983). and

importantly,

petitioner

represented

counsel

therefore,

incurred no attorney's fees. "mailing,

Petitioner is merely seeking paying for copies!,] and the

reimbursement of filing fees,
extensive
correct

time

spent

researching and developing argument
(Response to Pleading of Counsel for

in order to
the Resp't:

a mistake."

Dated February 10, 2009, at 2.)

Petitioner is simply not entitled to the

reimbursement he seeks, and therefore, the request should be DENIED.
III. RECOMMENDATION

For

the

foregoing

reasons,

the

Court

recommends

that

petitioner's

petition
to

for

writ

of

habeas

corpus

be

DISMISSED
failed

and
to

respondent's motion

dismiss be

GRANTED.

Petitioner has

demonstrate "a substantial
right."

showing of the denial

of a constitutional

Therefore, it is recommended that the Court decline to issue any

certificate of appealability pursuant to Rule 22(b) of the Federal Rules

of Appellate Procedure.
(2003) .

See Miller-El v. Cockrell. 123 S.Ct. 1029, 1039

IV.

REVIEW PROCEDURE

By copy of

this Report and Recommendation,
§ 636(b) (1) (C) :

the parties

are

notified that pursuant to 28 U.S.C.

1. Any party may serve upon the other party and file with the

Clerk written objections to the foregoing findings and recommendations within ten days from the date of mailing of this report to the objecting
party, computed pursuant to Rule 6 (a)
6

of

the

Federal

Rules

of

Civil

Procedure, plus three days permitted by Rule 6(d) of said rules.

See 28

U.S.C. § 636(b) (1) (C) (2000); Fed.R.Civ.P. 72(b) .

A party may respond to

another party's objections within ten days after being served with a copy
thereof.

2.

A district judge shall make a de novo determination of

those portions of this report or specified findings or recommendations
to which objection is made.

The parties are further notified that failure to file timely

objections

to

the

findings

and recommendations

set

forth above

will

result in waiver of right to appeal from a judgment of this court based on such findings and recommendations. See Thomas v. Arn. 474 U.S. 140

<1985>> Carr v.
Schronce.

Hutto,

737 F.2d 433
(4th Cir. 1984).

(4th Cir.

1984);

United states v.

727 F.2d 91

James E.
Norfolk,
June 3.

Bradberry

JjlL

Virginia
2009

United States Magistrate Judge

Clerk's

Mailing

A copy of the foregoing Report was mailed this date to each of
the following:

Michael McEvily, #339637, qto se Coffeewood Correctional Center
P.O. Box 500

Mitchells,
Mark R.

VA

22729
Esq.

Assistant Attorney General of Virginia
900 E. Main Street Richmond, VA 23219

Davis,

Fernando Galindo,

Clerk

Deputy Clerk'

& <j

, 2009