Paternoster-Cozart v. Clarke

Filing 50

OPINION and FINAL ORDER. 1 Petition for Writ of Habeas Corpus is DISMISSED and DENIED. The Court GRANTS Respondent's 24 Motion to Dismiss, and DISMISSES Petitioner's procedurally defaulted § 2254 motion in its entirety. Alternativ ely, Petitioner's habeas motion is DENIED on the merits. Having conducted a "clear error" review of the Magistrate Judge's discussion and recommend findings, this Court finds no clear error in the conclusion reached by the Magistr ate Judge, and therefore ADOPTS the recommendation that Petitioner's second, third and fourth claims fail to demonstrate a constitutional violation. Because these three claims fail to establish a constitutional violation, they are insufficient t o demonstrate "prejudice" to excuse Petitioner's procedural default, and Respondent's motion to dismiss grounds two, three, and four of the amended habeas petition is therefore GRANTED and such claims are DISMISSED. Alternatively, even if this Court assumes that it is permitted to reach the merits of such claims, grounds two, three, and four are DENIED on the merits for the same reasons stated by the Magistrate Judge. The Magistrate Judge concluded that Petitioner's firs t claim was "exhausted," in that no further relief could be obtained through the state court habeas process, but also concluded that such claim was "procedurally defaulted" because it was dismissed by the Virginia Supreme Court pu rsuant to an adequate and independent state procedural rule. Neither party has objected to this preliminary procedural analysis, and this Court ADOPTS such analysis herein. As the Magistrate Judge's detailed analysis on "cause" plainly does not evince any clear error, such analysis is ADOPTED and INCORPORATED herein. The Court therefore GRANTS Respondent's motion to dismiss, and DISMISSES Petitioner's amended § 2254 petition in its entirety. Petitioner's claims are alternatively DENIED on the merits. Finding that Petitioner fails to make the requisite legal showing supporting the issuance of a certificate of appealability, this Court declines to issue such a certificate. Petitioner is ADVISED that because a certificate of appealability is denied by this Court, he may seek a certificate from the United States Court of Appeals for the Fourth District. The Clerk is DIRECTED to provide a copy of this Opinion and Final Order to Respondent, and to mail a copy to the Petitioner. Signed by District Judge Mark S. Davis on 7/31/2014. Copies mailed 8/1/2014.(jmey, )

UNITED

FOR THE

STATES

DISTRICT

EASTERN DISTRICT

FILED

COURT

OF

VIRGINIA

AUG -1 2014

Norfolk Division

JOSHUA PATERNOSTER-COZART,

CLERK, US. DISTRJCr COURT

#14 012 69

.. ^;f ('UK. VA

Petitioner,
v.

Case

HAROLD W.

CLARKE,

No.:

2:13cv539

Director,

Virginia Department of
Corrections,

Respondent.

OPINION

and

By Order of October 5,
sentenced Joshua

years of

FINAL

2011,

a Hampton Circuit Court judge

Paternoster-Cozart

incarceration for

ORDER

("Petitioner")

several crimes.

to

serve

four

Petitioner filed a

habeas corpus petition in the Hampton Circuit Court challenging
such

order,

petition

but

the

to

failed

to

Virginia

timely

Supreme

filed a habeas corpus petition in

prisoner

generally

remedies

before

a

corpus petition.
denial
Supreme

of

his

Court,

law

requires

Court.

court

the

denial

all
can

of

Petitioner

this Court.

exhaust

federal

has

However,

available
consider

now

a state

state

such

that

a

court
habeas

Because Petitioner failed to timely appeal the
state
he

proceed with his

must

appeal

court

has

habeas

petition

procedurally

to

defaulted

federal habeas corpus petition.

that

federal

habeas

courts

give

the
his

Virginia
right

to

While federal
due

respect

to

state

courts'

procedural
"cause"

habeas

default

decisions

can

be

involving

excused

state

where

a

petitioner

for the default and actual "prejudice"

violation

of

federal

law.

As

Petitioner

prisoners,

such

shows

as a result of a

fails

to

demonstrate

that he is entitled to credit against his four-year sentence for

time he previously spent in confinement during his diversionary
drug court program,
violation

of

Petitioner has

federal

law,

"prejudice."

For

this

detail

his

federal

below,

and

not shown that

therefore

reason,

and

habeas

as

he

there was

has

not

explained

petition

is

in

a

shown

greater

DISMISSED

and

DENIED.

The
before

federal petition for a writ
this

Petitioner's
immediate

being

Court

was

primary

release

denied

that

he

rights

pursuant

contention

from

credits

violation of the Fifth,
United

filed

against
Eighth,

Constitution.

was

a

under

denied
the

is

to

corpus pending

28

he

because

state

U.S.C.

§

should be
he

is

court

2254.

granted

improperly

sentence

in

and Fourteenth Amendments to the
Additionally,

hearing

Fourteenth

his

habeas

that

incarceration

States

of

in

Petitioner

violation of

Amendment,

that

his

he

due

was

alleges

process

forced

to

participate in a religious drug-counseling program in violation
of his First Amendment rights,
to

the

effective

assistance

Sixth Amendment rights.

and that he was denied the right
of

counsel,

in

violation

of

his

Pursuant
72(b)
the

of

to

the

Rules

District

provisions

Federal

of

of

the

the

Rules

United

Virginia,

of

of

Civil

States

this

28

U.S.C.

Procedure,

District

matter

§ 636(b) (1),

was

and

Court

for

previously

Rule
the

Rule
72

of

Eastern

referred

by

this Court to a United States Magistrate Judge for a report and
recommendation

motion,

("R&R").

In

addition

to

Petitioner's

habeas

which was amended and supplemented with leave of

court,

the Magistrate Judge had before him a motion to dismiss filed by
Harold W.

Clarke,

("Respondent").
his

R&R

denied,

part,

Director,

On May

recommending
that

Virginia Department

22,

that

2014,

the

of

Magistrate
motion

Judge

issued

to

dismiss

be

amended habeas motion be

Petitioner's

Respondent's

Corrections

granted,

in

and that Petitioner receive a credit against the sentence

he is currently serving for sixty-six (66) days that he spent in
jail confinement between July 14,
ECF No.

their right

recommendations
thereafter

materials

2011.

the

Petitioner and Respondent were advised

file written objections

made

by

the

were

Magistrate

objections

Additionally,

that

were part of
in

to

received

Respondent.

aid

and September 13,

34.

By copy of the R&R,
of

2010

not

this

before

from
Court
the

the state court record,
resolution

of

to

the

Judge.
both

This

and

Court

Petitioner

requested

Magistrate

findings

and

Judge,

and

received
but

that

including transcripts,

Petitioner's

habeas

motion.

to

Having

considered de novo all objected-to portions of the R&R,

for the

reasons set forth in detail below, the Court GRANTS Respondent's

motion

to

dismiss,

defaulted

§

and

2254

DISMISSES

motion

in

Petitioner's

its

entirety.

procedurally
Alternatively,

Petitioner's habeas motion is DENIED on the merits.
I.

The
account

FACTUAL

Court
of

BACKGROUND AND

PROCEDURAL

adopts

incorporates

the

Magistrate

facts,

the

and
and

repeats

the

facts

only

address the objections before this Court.

Petitioner pled guilty,

counts
grand

of

forgery,

larceny

Virginia

in

("the

Pursuant

to

sentenced

pursuant

three
the

trial

the

Petitioner

of
to

ten

years

suspended,

months

on

of

the

2008,

uttering,

and one

count of

City

Hampton,

for

the

"Hampton

plea

Circuit

agreement,

years

of

the

Court").

trial

court

on the forgery and uttering counts,

and

with

larceny

imprisonment,

three

all

grand

active

On October 16,

to

with

imprisonment,
the

necessary

to

or

twelve

Judge's

a plea agreement,

Court

court"

terms

to

counts of

Circuit

twelve years suspended,
to

HISTORY

nine

years

count,

for

incarceration.

and
a

nine

total

Following

of

months
three

incarceration,

Petitioner was

required to serve a lengthy period of probation.

On January

2010,

offense,

8,

which

third offense."

charge,

Petitioner pled guilty

occurred

on

December

20,

to

2008

a
—

new

criminal

"shoplifting,

The trial court found Petitioner guilty of such

entered an order reflecting that
4

finding,

and continued

the matter
conviction

for preparation of
constituted

a

a

presentence

violation

of

the

report.

terms

of

Such new

Petitioner's

probation on the 2008 convictions.
While
and

awaiting

while

awaiting

convictions,

sentencing
a

probation

Petitioner

sentencing options.

on

was

the

shoplifting

violation

evaluated

for

for the Hampton Drug Court program.
accepted

Commonwealth

shoplifting
violations

signed

on

the

and

2008

Under

violations,

various

the

2008

alternative

one

the

the

plea
and

sufficient

to

agreements
pertained

other

resolved

uttering,

agreement

the

asking to be screened

On July 13, 2010,

plea

forgery,

Petitioner

was

two

Petitioner;

conviction,

convictions.

evidence

and

and

on

While these evaluations were taking place,

Petitioner wrote his attorney in May 2 010

court

hearing

conviction,

for

and

the

Commonwealth

revoke

between

the

to

the

the

probation

grand

2008

agreed

probation,

the trial

but

new

larceny

probation
that

that

the

if

Petitioner successfully completed the Hampton Drug Court Program

("the drug court program"),1 the Commonwealth would recommend a

1 As

explained

Commonwealth,

In

2004,

Court

by

the

279 Va.

the

Act,

Supreme

541,

544

General
Code

§

Court

of

Virginia

in

Harris

(2010):

Assembly

enacted

18.2-254.1,

to

the

Drug

enhance

Treatment
effective

treatment programs for reducing drug use and its impact on
families and drug-related crimes.
As part of this program,
the General Assembly designated "drug treatment courts" as
"specialized court dockets within the existing structure of
Virginia's court system offering judicial monitoring of
intensive treatment and strict supervision of addicts in

v

suspended sentence on such probation violations,
additional period of
to

successfully

sentenced to

a

probation.

complete
total of

the probation violations

the

However,

drug

court

four years
on

the

of

2008

if

followed by an

Petitioner failed

program,

active

were

would

be

incarceration for

convictions.

plea agreement for the new shoplifting conviction,

January 8,

he

Under

the

Petitioner's

2010 plea of guilty and the court's finding of guilt

recognized,

and

it

was

Petitioner would enter the

agreed

drug court

by

the

program.

successfully completed the drug court program,

agreed to recommend a suspended sentence,
of probation.

However,

parties
If

that

Petitioner

the Commonwealth

followed by a period

if Petitioner failed to successfully

complete the drug court program,

the parties agreed he would be

sentenced to one year and eight months of active incarceration.
The trial court signed both plea agreements and entered orders
accepting the plea agreements.

drug and drug-related cases."
legislation

provided

that

drug

Code § 18.2-254.1(D).
treatment

court

The

programs

could be created by localities under the administrative
implementation
oversight
of
this
Court,
pursuant
to
standards created by a state drug treatment court advisory
committee.

Code § 18.2-254.1(E), (F) .

A local jurisdiction

creating this program must also have an advisory committee
that sets policies and procedures for the operation of the
program.
Code
§
18.2-254.1(G) ,(H), (I) .
Potential
participants are screened according to eligibility criteria
established by the local program.
No defendant is entitled
to participate in the program and it is not available to
every defendant.
Code § 18 .2-254.1(M) . The Drug Treatment
Court Act does not mandate specific procedures
operation of the drug treatment court program.

for

the

Petitioner began the

and,

according to his

drug court program on July 14,

state habeas petition,

he

was

on July 26, 2010, and again on September 10, 2010,
was

required to

serve

jail time for three days

On March

respectively.

7,

2011,

after

being

drug court program for almost eight months,

Petitioner

was given the option,

from

the

drug

court

which he elected,

"violated"

for which he

and five days,
enrolled

in

the

Petitioner's third

violation was based on a positive test for cocaine.
terminating

2010,

Rather than

program,

Petitioner

to complete a program at

the Stafford Diversion Center ("the diversion program").2
No.

49-4 at

2011,
the

6-8.

program

staff

Petitioner.

As

administratively
September
before

13,

the

"failed

to

terminated

Court Program";

and

of

his

from

Petitioner,

written

comply

discovered

result

Hampton Circuit

several

on

members
a

2011,

entered

hearing

While in the diversion program,

with

(2)

Petitioner's

the
who

Court,

the

setting
2008

was

(1)

terms

marijuana

in

and

center.

custody,

counsel,
finding

and

that

conditions

an October 5,
convictions

on

Petitioner was

diversion

with

orders:

on August 16,

synthetic

misconduct,

ECF

of

On

appeared
the

judge

Petitioner
the

Drug

2011 revocation

and

a

sentencing

2 The state court record indicates that Petitioner appeared before the
Hampton Circuit Court on March 15, 2011,
the

matter

was

continued

while

the

with counsel,

Defendant

was

placement in the Detention and Diversion Center Program.

at which time
evaluated

for

hearing on Petitioner's

shoplifting conviction.

at 18,

at 50.

48;

On

ECF No.

October

sentencing

46-2,

5,

2011,

hearing

in

at

the

Hampton

conclusion

Circuit

ECF No.

of

the

Court,

46-1,

revocation/

Petitioner

was

sentenced to a total of four years active incarceration based on
his

failure to complete the drug court program,

his July 13,

2010 plea agreements.

four

sentence

year

associated

imposed
his

with

for

term

his

his

sentence

Hampton Circuit Court,

No

shoplifting

incarceration,

of

probation

convictions.

2010

was

violations

active

time

conviction.

Petitioner

and

required by

Such sentence represented a

Petitioner's

2008

Petitioner's
of

computation

on

as

inquired

informed

was

During
into

that,

the

per

the

he would not receive credit against the

four year sentence for the days that he was confined as part of
the drug court program.

ECF No.

41-6.

On July 12, 2012, Petitioner filed a writ for a petition of
habeas

corpus

in

the

trial

including a claim that his

court

alleging

various

claims,

constitutional rights were violated

through the denial of a sentencing credit for the days he spent
in

confinement

court

as

addressed

and dismissed"

2, 2012.

ECF.

part

each

of

of

the

drug

Petitioner's

court

program.

habeas

claims

The
and

trial

"denied

the state habeas petition by order dated November

No.

and was granted,

25-1.

Petitioner thereafter timely pursued,

an extension until January 2,
8

2013,

to file a

notice

of

appeal

in

the

trial

court.

ECF

No.

18-1

at

18.

Petitioner asserts that he timely appealed on December 17, 2012,

by mailing his appeal notice to the trial court.3
However,

Id. at 19.

the trial court never received such filing.

After seeking an update on his appeal status several months
later,

Petitioner

received

Supreme Court of Virginia,
the

trial

court

Petitioner

never

thereafter

a

letter

from

dated April 8,

received
resent

the

2013,

Petitioner's
his

notice

Clerk

the

indicating that

notice
of

of

of

appeal.

appeal,

dated

December 17, 2 012, to the Supreme Court of Virginia asking that

it be treated as properly filed.

Supreme

Court

of

Virginia

However,

dismissed

on July 25,

Petitioner's

2013, the

appeal

for

failure to comply with Virginia Supreme Court Rule 5:9(a), which

requires that a notice of appeal be timely filed in the trial
court.

On

ECF No.

41-8.

October

Petitioner's
Petitioner

1,

state

filed

his

2013,
habeas
federal

subsequent
appeal
habeas

on

to

the

denial

procedural

petition

Petitioner thereafter filed an amended petition,

in

of

grounds,

this

ECF No.

Court.
9,

and

after being granted leave of court, Petitioner was permitted to
file a "Supplemental Petition" which expands on the facts stated
3 Petitioner supports his assertion that he timely appealed with an
affidavit
from
a
state
prison
official,
which
indicates
that
Petitioner sent "legal mail" on December 17, 2012, to the Hampton
Commonwealth Attorney's Office, the Attorney General's Office, and the
Hampton Circuit Court.
ECF No. 18-1 at 20.

in the amended petition and includes exhibits and legal argument
in support thereof.

ECF No.

18.

Petitioner's amended petition

and supplement advance four grounds for relief.
On

March

14,

Magistrate Judge,
Dismiss,"

and

argued

memorandum

filings
that

Petitioner's

pursuant

to

an

order

issued

Respondent filed a "Rule 5 Answer,"

and

Respondent's

2014,

in

support.

the

relief

opposed

this

claims,

Court
but

should

should

not

instead

ECF

by

"Motion to

Nos.

sought

by

reach

the

dismiss

the

23-25.

Petitioner,
merits

his

of

amended

petition on procedural grounds.

On May 22, 2014, the Magistrate Judge assigned to this case
issued his R&R recommending that:
be

considered

defaulted

to

(2)

sixty-six

the

merits

because

"prejudice"
relief;

on

(1)

even

though

Petitioner

excuse

his

days

that

default

he

they

are

demonstrates

as to such first ground,
(66)

Petitioner's claims should

spent

on

his

procedurally
"cause"

first

and

ground

for

he should be credited with
in

confinement

between

the

date his drug court program began (July 14, 2010), and the date

his

drug

court

court

program

was

formally

(September 13, 2011); and (3)

grounds

for

relief

should be

terminated

by

arguing that,

trial

Petitioner's remaining three

dismissed

on

the

merits

they do not demonstrate constitutional violations.
On June 4, 2014,

the

because

ECF No. 34.

Petitioner filed a single objection to the R&R,

in addition to the
10

sixty-six days recommended by

the

Magistrate

Judge,

Petitioner

should

also

receive

credit

against his four-year sentence for the approximately four months
he spent confined at the Stafford Men's Diversion Center in mid2011 as
11,

part of

2014,

response

his drug court program.

Respondent

to

objection

filed

Petitioner's

argues

that

procedural default,

four

ECF No.

objections

objection.

Petitioner

and therefore,

to

38.

the

R&R

Respondent's

failed

to

On June
and

a

threshold

overcome

his

should be awarded no credit

against his four-year sentence for any of the time he spent in
jail, or a jail equivalent,
Nos.

4 0-41.

during the drug court program.

ECF

Petitioner thereafter filed a reply to Respondent's

filing, ECF No. 44, and this matter is now ripe for review.
II.

STANDARD OF REVIEW

A.

R&R Standard

This Court conducts a de novo review of any portion of the

Magistrate Judge's R&R to which specific objections are made.
28

U.S.C.

§

636(b)(1)(C).

magistrate [judge's]

"The

filing

of

objections

to

a

report enables the district judge to focus

attention on those issues — factual and legal — that are at the

heart of

147

(1985) .

objection,
but

the parties'

"By contrast,

on

Thomas v.

in the absence

Am,

474

of a

U.S.

140,

timely filed

a district court need not conduct a de novo review,

instead must

error

dispute."

the

'only satisfy itself

face

of

the

record
11

in

that

there

order

to

is no clear
accept

the

recommendation.'"

Diamond v.

Colonial Life & Accident Ins.

416

(4th Cir.

2005)

F.3d 310,

315

advisory committee
modify"
may

the

note).

Magistrate

"recommit

the

instructions

for

This

Judge's

matter"

Court

R&R,
to

further

(quoting Fed.
may

Civ.

P.

72

reject,

or

in part,"

or

"accept,

"in whole

the

R.

or

Co.,

Magistrate

consideration.

Judge
28

with
U.S.C.

§ 636(b)(1)(C).
B.

Federal

habeas

§ 2254 Standard

relief

is

available

to

a

person

in

state

custody "only on the ground that he is in custody in violation
of

the

Constitution or

28 U.S.C.

§ 2254(a).

laws

or treaties

of

the United States."

Before a federal court may consider a writ

of habeas corpus presented by an individual
the

petitioner

remedies.

2004)

must

first

exhaust

all

in state custody,

available

state

Longworth v. Ozmint, 377 F.3d 437, 447-48

(citing 28 U.S.C. § 2254(b)).

requirement,

the

petitioner

must

court

(4th Cir.

To satisfy the exhaustion
generally

"'give

the

state

courts one full opportunity to resolve any constitutional issues

by

invoking

appellate

one

complete

review process,'"

round
which

of

the

includes

State's

established

"presenting to

the

state court 'both the operative facts and the controlling legal

principles'

associated with each claim."

Id.

at 448 (quoting

Baker v. Corcoran, 220 F.3d 276, 289 (4th Cir. 2000)).

12

"A state prisoner seeking § 2254 habeas corpus relief faces
several procedural obstacles."

Wolfe v.

160

to comply with applicable state

(4th Cir.

procedural

2009) .

Failure

requirements

can

result

in

Johnson,

a

565

F.3d 140,

"procedural

default"

which generally precludes a federal court from adjudicating the
merits
436

the

of

a

petitioner's

F.3d 412,

United

417

States

claims.

(4th Cir.

Court

of

Id.

2006).

(citing Vinson v.

As

Appeals

True,

explained in detail by

for

the

Fourth

Circuit

("Fourth Circuit"):

Under the procedural default doctrine, federal habeas
review of federal claims defaulted by prisoners in
state court "pursuant to an independent and adequate
state procedural rule ... is barred unless the
prisoner can demonstrate cause for the default and
actual prejudice as a result of the alleged violation
of

federal

law."

Coleman v.

Thompson,

501

U.S.

722,

750 (1991). "The procedural default doctrine and its
attendant cause and prejudice standard are grounded in
concerns of comity and federalism and apply alike
whether the default in question occurred at trial, on
appeal, or on state collateral attack." Edwards v.
Carpenter, 529 U.S. 446, 451 (2000) (internal citation
and quotation marks omitted).
In addition to showing
"due
regard
for
States'
finality
and
comity
interests," Dretke v. Haley,

541 U.S.

386,

393

(2004),

the procedural default doctrine's cause and prejudice
standard,
by allowing federal courts
to consider
certain procedurally defaulted claims, also serves to
ensure

"that

'fundamental

fairness

[remains]

central concern of the writ of habeas corpus.'"
(quoting Strickland v. Washington, 466 U.S. 668,
(1984)) . .

the

Id.
697

. .

Richmond v. Polk, 375 F.3d 309, 322 (4th Cir. 2004).4

4 There is also a limited actual innocence exception to the procedural
default bar, Richmond, 375 F.3d at 323; however, such exception is not
13

III.

The

Magistrate

Petitioner's
forced

UNOBJECTED-TO

four

Judge

recommended

grounds

participation

for

in

ineffective

assistance

Petitioner

failed

OF THE

that

relief

religious

of

R&R

the

latter

(denial
drug

counsel)

should

demonstrate

to

constitutional rights.

PORTIONS

a

of

three

a

hearing,

counseling,
be

denied

a

discussion

error

in

and

the

therefore

third,

"clear

violation

of

and

error"

conclusions
the

Because

review

of

findings,

the

this

Magistrate

Court

finds

reached by the Magistrate

recommendation

fourth claims

violation.5

his

Neither party objected to the Magistrate

recommend

ADOPTS

and

because

Judge's analysis concluding that such claims lack merit.
conducted

of

fail

these

that

three

claims

Judge's

no

fail

a

clear

Judge,

Petitioner's

to demonstrate

Having

and

second,

constitutional
to

establish

a

implicated in this matter.
5 This Court would reach the same conclusion as

the Magistrate Judge

with respect to Petitioner's second ground for relief (alleged due
process violation), as Petitioner fails to demonstrate that he was
denied "notice to be heard" and/or denied a hearing in violation of
the
United
States
Constitution.
Notably,
even
assuming
that
Petitioner has a constitutional right to "'some orderly process'"

prior to being terminated from the drug court program, see Harris, 279
Va.

at 545

Petitioner

(quoting Morrissey v.
fails

to

demonstrate

Brewer, 408 U.S. 471, 482
that

he

was

in

fact

(1972)),

denied

such

"process" because the state court record demonstrates both that:

(1)

Petitioner had a hearing at the diversion center three days after the
issuance of
an
infraction report alleging that
Petitioner both

possessed
devices,

synthetic
and at

the

marijuana

and

conclusion of

used

unauthorized

such hearing,

communication

Petitioner was

found

guilty of both infractions in violation of the rules of the diversion
program, ECF No. 49-4, at 7-8; and, most importantly to this analysis,
(2)

more

than

three

weeks

later,
14

Petitioner

appeared

before

the

constitutional
"prejudice"

violation,

to

they are

excuse

Petitioner's

Respondent's motion to

dismiss

insufficient

to

procedural

grounds

two,

demonstrate

default,

three,

and

and four of

the amended habeas petition is therefore GRANTED and such claims
are DISMISSED.

Alternatively,

even if

this

Court assumes

that

it is permitted to reach the merits of such claims, grounds two,
three,

and four are DENIED

on the merits

for

the

same reasons

stated by the Magistrate Judge, as supplemented above.

As a result of the above finding, the only remaining claim
before

this

petition,

Court

is

alleging

ground

that

Fourteenth Amendment

one

of

Petitioner's

rights

were

Petitioner's

Fifth,

violated when

amended

Eighth,

and

Petitioner was

not given credit for the time he spent in confinement as part of

the drug court program.6
Petitioner's

first

claim

The Magistrate Judge concluded that
was

"exhausted,"

in

that

no

further

relief could be obtained through the state court habeas process,
but also concluded that such claim was

"procedurally defaulted"

because it was dismissed by the Virginia Supreme Court pursuant

Hampton Circuit Court, with counsel, for a hearing, at which time he
was terminated from the drug court program,

ECF No. 41-4.

6 This Court also conducts a Sixth Amendment analysis because although

Petitioner did not squarely address his Sixth Amendment rights in his
amended petition or supplement, the Magistrate Judge's detailed
analysis of Petitioner's right to a sentencing credit included a
discussion of the case law recognizing that the improper denial of

sentencing

credits

can,

in some

circumstances,

Amendment protections.
15

impinge

upon Sixth

to an adequate and independent state procedural

rule.

Neither

party has objected to this preliminary procedural analysis,
this

Court

portions
the

ADOPTS

of

the

framework

such

analysis

ground one
for

such

herein.

analysis

analysis

are

The

set

objected-to

forth below,

informed

by

and

the

with

objections

pending before this Court.
IV.

RESPONDENT'S

OBJECTIONS TO THE

R&R

A. Objection to Procedural Default Analysis

Respondent's

first

objection

R&R

Judge's

procedural

default

prejudice"

with respect to ground one of

objects

through

Richmond,

to the

demonstrated

375 F.3d at

and

overcame

his

and

"actual

the amended habeas

Although Respondent

conclusion

prejudice,"

the

"cause"

322.

Judge's

challenges

Petitioner

demonstrating

Magistrate

"cause

that

the

Magistrate

petition.

conclusion

to

that

Respondent

Petitioner

"concedes

that

there may be sufficient evidence to support a finding of cause"
in light of the evidence suggesting that Petitioner attempted to

timely

submit

Resp't's

his

Obj . Mem.

state
10,

making such concession,

habeas
ECF

No.

appeal
41

to

the

(emphasis

trial

court.

added).

After

Respondent's objection focuses entirely

on Petitioner's purported failure to demonstrate prejudice.
This

Court

objection

analysis.

therefore

as

As

does

challenging

the

not

the

Magistrate
16

construe

Magistrate

Judge's

Respondent's

Judge's

detailed

Id.
first

"cause"

analysis

on

"cause" plainly does not evince any clear error, such analysis
is ADOPTED

that

and INCORPORATED

Petitioner

satisfies

herein.

the

This

"cause"

Court

prong

therefore

of

the

finds

two-part

procedural default test.

Turning to prejudice,

although it

a procedurally defaulted claim cannot

of

"actual prejudice,"

of

the prejudice

see Amadeo v.

486

although the Supreme

and prejudice'
federal

state

U.S.

Court

court,"

relief

the

on

Court

unclear.

214,

R&R

221

showing

precise contours

13-14,

(1988)

had previously

requirement

habeas

succeed absent a

the R&R notes that the

inquiry are

Zant,

is well-established that

ECF No.

(explaining that

"adopted the

. . . for all petitioners
constitutional

left open

"'for

34;

claims

'cause

seeking

defaulted

resolution

in

in future

decisions the precise definition of the 'cause'-and-'prejudice'
standard'"

(quoting

(1977))).

In

alleging trial

the

Wainwright

context

errors,

[the]

dimensions."

7

In

the

violation,"

of

entire

Sykes,

procedurally

"prejudice"

"worked to [a petitioner's]

infecting

v.

433

U.S.

72,

defaulted

87

claims

is defined as errors that

actual and substantial disadvantage,

trial

with

error

of

constitutional

United States v. Frady, 456 U.S. 152, 170 (1982).7

context

which

of

a

occurs

§

2254

when

habeas

the

claim

prosecution

asserting

fails

a

to

"Brady

disclose

material exculpatory evidence to the defense, the Fourth Circuit has
described the procedural default "prejudice" standard as "coincident
with" the "prejudice" that must be proven to establish such a Brady
violation, Wolfe v. Clarke,

691 F.3d 410, 420 (4th Cir. 2012),
17

namely,

In the

context

is defined as

ineffective

assistance

of

counsel,

"a reasonable probability that,

unprofessional
been

of

errors,

different."

the

result of

Strickland v.

prejudice

but for counsel's

the proceeding would have

Washington,

466

U.S.

668,

694

(1984) .

Whatever the precise contours of

the prejudice

inquiry as

applied to alleged errors of a state tribunal or agency that are

both unrelated to counsel's performance and unrelated to trial,
the United States

Supreme

Court

has

expressly recognized that

" [f]ederal habeas challenges to state convictions

greater

finality

habeas

claims

problems

advanced

and

by

a

special
federal

comity

. . . entail

concerns"

prisoner

and

than

require

a

showing "'greater than the showing required to establish plain
error on direct appeal.'"

(1982)
Here,

Engle v. Isaac,

(quoting Henderson v.
this

Court

finds

Kibbe,

that

456 U.S. 107, 134-35

431 U.S.

Petitioner

145,

fails

154

to

(1977)).

demonstrate

"actual prejudice" regardless of whether the Court applies the
Frady

"error

of

constitutional

dimensions"

Strickland "result of the proceedings"

F.3d

at

contours

326
of

n.7
the

(recognizing
prejudice

test.

questions

inquiry but

test

or

the

Cf. Richmond,

regarding
finding

the

that

375

precise

the

court

"need not resolve this question" because the petitioner did not
that the withheld evidence

"is likely to have

United States v. Bartko, 728 F.3d 327,
quotation marks and citations omitted).
18

338

changed the verdict,"

(4th Cir.

2013)

(internal

satisfy either version of
effectively

Court

present

finds

that

the

the

the prejudice standard).
reasoning

best

behind

approach

is

such

to

In order to

conclusion,

individually

the

review

each of the constitutional wrongs alleged by Petitioner.
1. Petitioner Fails to Demonstrate Prejudice from
a Fourteenth Amendment Equal Protection Violation

Petitioner's

denied

equal

first

ground

for

under

the

protection

relief

law

alleges

when

he

that

was

he

was

denied

a

credit against his sentence for the days he spent in confinement

during his drug court program.8

The Fourteenth Amendment to the

United States Constitution provides that no state shall "deprive

any person of life, liberty, or property, without due process of
law;

nor deny to any person within its jurisdiction the equal

protection of the laws."
purpose

of

Amendment

the
is

equal

to

protection

secure

jurisdiction against
. . . .'"

U.S. Const, amend. XIV, § 1.

every

intentional

Village of

clause
person

of

the

within

and arbitrary

Willowbrook v.

Olech,

528

"' [T] he

Fourteenth

the

State's

discrimination
U.S.

562,

564

8 Pursuant to the analysis of the Supreme Court of Virginia in Charles
v. Commonwealth, 270 Va. 14, 20 (2005), abrogated on other grounds by
Rawls v. Commonwealth, 278 Va. 213 (2009), this Court's discussion
assumes that, as argued by Petitioner, the days Petitioner spent in
the Stafford Diversion Center are the equivalent of "incarceration."
This Court makes
such assumption notwithstanding the
fact
that
Petitioner served this time while under drug court supervision, and

the

fact

that Charles

"Detention Center

whereas here,

was

analyzing a defendant's

Incarceration

Program,"

see

Va.

time
Code

spent

in a

§ 53.1-67.8,

it at least appears that Petitioner was assigned to a

"Diversion Center Incarceration Program," see Va. Code. § 53.1-67.7.
19

(2000)
U.S.

(quoting Sioux City Bridge Co.

441,

445

"' [T] o

v.

Dakota Cnty,

Neb.,

260

(1923)).

succeed

on

an

equal

protection

claim,

a

plaintiff

must first demonstrate that he has been treated differently from
others with whom he
treatment

was

the

discrimination.'"

Cir.

2003)

(4th

Cir.

is

similarly situated and that the unequal
result

Williams

(quoting
2001)).

of
v.

Morrison
If

intentional

Hansen,

v.

such

326

showing

purposeful

F.3d

569,

576

(4th

239

F.3d

648,

654

Garraghty,

a

or

is

made,

the

court

"'proceeds to determine whether the disparity in treatment can

be

justified

(quoting

under

requisite

239

Morrison,

the

F.3d

at

level
654).

of

scrutiny.'"

Heightened

Id.

scrutiny

applies in cases involving discrimination based on membership in
a suspect class,

to include race,

national origin,

and sex, as

well as in cases where the challenged activity "impinges upon a
fundamental right."

(4th Cir.
is

United States v. Lawson,

2012).

Otherwise,

"rational basis"

review,

677 F.3d 629,

the appropriate level of
and a

637

scrutiny

law or policy satisfies such

standard if it is rationally related to a legitimate government

purpose.

Romer

Giarratano

v.

("[T]he
related

v.

Johnson,

challenged
to

a

Evans,
521

517
F.3d

classification

legitimate

state

U.S.
298,

need

interest

620,
303

631
(4th

only

be

unless

it

(1996);
Cir.

see
2008)

rationally
violates

a

fundamental right or is drawn upon a suspect classification such
20

as

race,

Dukes,

religion,

427 U.S.

Relevant
the

297,

303

in this

Virginia

sentenced to

or gender."

a

providing

term of

that

confinement

"[a]ny

in a

. . . in a state or

(2014)

(emphasis

added).

person

correctional

. . . ."

Under

who

is

facility

time actually spent

local correctional

awaiting trial or pending an appeal

187

v.

to the equal protection analysis is

shall have deducted from any such term all
by the person

New Orleans

(1976))).

case

statute

(citing City of

Va.

Virginia

facility

Code § 53.1-

law,

confinement

commences and is computed "from the date of the final judgment,
which,
writ

in case of

of

error or

53.1-186.

court

Also

record

Virginia
Circuit

an appeal,
the

Court

affirmance of

relevant

is

demonstrates

Department

shall be that of

of

concluded

the

that

the

fact

that

judgment."
that

both

Corrections

the refusal of

was

Code

Petitioner's

officials

("VDOC")

Petitioner

Va.

within

and
not

the

to

be

a
§

state

the

Hampton
awarded

any credit against his four-year sentence for the time he spent
in drug court confinement.
a. Disparate Treatment Based on Indigency
or Pursuit of Appeal Rights

In asserting that he was denied equal protection under the
law,
v.

Petitioner relies on the Fourth Circuit's opinion in Durkin

Davis,

4, ECF No.

538

18.

F.2d 1037

(4th Cir.

In Durkin,

1976).

Pet'r's

§ 2254

Supp.

the Fourth Circuit acknowledged that

21

prior case

law

"recognized that

the right

to credit

for jail

time awaiting trial on a bailable offense and pending appeal is
not

a

matter

of

legislative

constitutionally mandated,
as

federal

prisoners."

grace

but

is

a

right

available to state prisoners as well
Id.

at

1039-40

(emphasis

added).

Explaining the justification for such rule later in its opinion,

the Fourth Circuit noted that

" [t]he equal protection violation

is founded on the inequality of treatment between one unable to
make bail and one who can make bail,

time,

who

as well as

appeals

credit

for

Although

it

and

in the case of pre-sentence

the inequality resulting between the defendant

the

defendant

confinement

was

who

pending

"irrelevant"

does

not,

appeal."

in

Durkin,

in
Id.

the

the

case

at

1040-41.

Fourth

of

Circuit

acknowledged precedent supporting the principle that failure to
award a credit for pre-trial confinement on a bailable offense

does not always constitute an equal protection violation because
the sentencing judge may have "given credit in his sentence" for
time spent in pre-trial confinement.

Id. at 1040.

The fact pattern before this Court is markedly different
from

the

scenario

discussed

in

Durkin

unable to make bond when he is arrested,

where

a

defendant

and therefore,

is

spends a

lengthy period of time in jail awaiting trial and/or pending an
appeal.

Id. at 1039-40.

Notably,

the instant matter does not

involve the denial of jail credit that is in any way related to
22

Petitioner's

inability

pursue an appeal.

spent

in

program

of

that
in

not

time

sentence,

or

part

spent

the

the

right

to

alternative

active

a

complete
to

His

sentence,

As

active

drug

nor

determination

an appeal.

an

of

a

court

does

it

guilt,

a

demonstrated by

Petitioner not only voluntarily entered

program,

diversion program,

to

penitentiary.

any

resolution of

court

Petitioner's

attempt

an

"awaiting"

the record in this case,

drug

his

was

of

a

or

Petitioner seeks credit for days he

confinement

was

bail,

during

program

represent

the

post

Rather,

confinement

rehabilitative
sentence

to

and

later

voluntarily

entered

the

but he wrote a letter requesting that he be

"screened for drug court" so that he could both tackle his drug
problem

and

"have

[his]

freedom."

ECF

Pursuant to Petitioner's plea agreements,

of

the

drug

suspended

court

sentence,

program
and

would

have

unsuccessful

No.

18-1,

at

31.

successful completion

likely

resulted

completion

called

in

a

for a

sentence of five years and eight months incarceration.

Although

Petitioner

was

confined

during

portions

of

his

drug court program, each day of confinement was triggered by his
misbehavior,
his

in one form or another,

financial

Petitioner

appeal"

was

status,

therefore

or

his

not

and had nothing to do with

right

"awaiting

to

pursue

trial"

or

an

appeal.

"pending

an

during the days he was confined as part of the drug

court program.

The equal protection analysis that is discussed
23

in Durkin and the cases cited therein,
treatment due to indigency,
is

simply

not

implicated

which involved disparate

and protection of appellate rights,
here.

Therefore,

Durkin

fails

to

support Petitioner's claim that his equal protection rights were
violated.

b. Disparate Treatment from Those Similarly Situated
Although

Petitioner

fails

to

demonstrate

protection violation through reliance on Durkin,
that

his

equal

protection

rights

were

against
during

their
their

sentences
drug

succeed on his

court

for

days

they

programs.

As

equal protection claim,

equal

he also argues

violated

Virginia inmates that were "similarly situated"

an

because

other

received credit

spent

in

confinement

previously

noted,

to

Petitioner would first

need to prove that he was intentionally treated differently from
other similarly situated individuals.
528 U.S. at 564.

"Generally,

Village of Willowbrook,

in determining whether persons are

similarly situated for equal protection purposes,
examine all relevant

739,

United States v.

Olvis,

97

F.3d

744 (4th Cir. 1996).

Petitioner

intentionally
situated.

three

factors."

a court must

has

treated

First,

documents

received credit

not

adequately

differently

demonstrated

from

that

others

he

was

similarly

although Petitioner provided this Court with

that
for

allegedly
time

demonstrate

they spent
24

that

other

in confinement

as

inmates
part of

their drug court programs,

none of

these

documents

demonstrate

that such individuals even participated in a drug court program.9
Second,
drug

even

court

fails

to

assuming

participants

demonstrate

intentionally
individuals
fails

that

to

were

in

claimed
the

identified

by

VDOC

intentionally

that:

three

or

that

(1)

treated

they

were

inmates

Petitioner,
Hampton

them differently.

demonstrate

Petitioner

as

that

treated

the

Third,

were

Petitioner

Circuit

Court

even

these

differently,
similarly

if

Petitioner
situated

they entered into a plea agreement

to

in

which drug court was an alternative to a specified sentence in

the penitentiary;

court program,

(2)

based on their performance during the drug

to include conduct that appears to constitute new

9 The first document is the VDOC "Legal Update" sheet for a Mr. Thomas
Seidnitzer.

Other than handwritten notes

on such computer generated

sheet, which may be Petitioner's writing, nothing therein suggests
that Mr. Seidnitzer participated in a drug court program.
ECF No. 181, Ex.

C.

The

second document

is

a VDOC

"Legal Update"

sheet for a

Mr. Jacob Wright which indicates that Mr. Wright received sentencing
credit for time spent in a diversion center, but fails to indicate
that he was in a drug court program.
ECF No. 38, Encl. 1.
The
exhibit associated with Mr. Wright also does not indicate whether he
was

sentenced

to

serve

time

in

the

diversion

center

program

as

contrasted with voluntarily opting for diversion center placement as
part of a drug court program.
The third document is the VDOC "Legal
Update" sheet from a Mr. George Freeland and similarly fails to
indicate that he was a drug court participant.
ECF No. 38, Encl. 2.
Although such exhibit does indicate that Mr. Freeland received credit
against a sentence for time spent in the Stafford Diversion Center, it
appears that Mr. Freeland was continuously incarcerated in various
jail facilities and detention centers from April 11, 2007, until
October 20,
Accordingly,
not

sent

to

2 008 when he entered the Stafford Diversion Center.
the face of such exhibit suggests that Mr. Freeland was
the

diversion

center

Petitioner.

25

under

the

same

circumstances

as

criminal acts,10 they spent time in confinement as part of their
drug

court

program;

(3)

that

such

after the unsuccessful completion of
(4)

that

the

individuals

were

sentenced

their drug court programs;

sentencing judge imposed a

sentence substantially

less than that called for by their written plea agreements;

(5)

that the total time spent in confinement,

court

confinement,

incarceration

aggregates

called

Accordingly,

for

Petitioner

to

by

less

the

fails

to

and

including all drug

than the

written

active

plea

demonstrate

term of

agreements.

intentionally

disparate treatment from those similarly situated, and therefore
fails to demonstrate an equal protection violation.
c. Justification for Treating Drug Court

Participants Differently from Other Felons
In

addition

to

Petitioner's

reference to three other inmates,

claim,

and

analysis,

Respondent's
implicates

the

citation

Petitioner's

objection
question

to
of

R&R's

to

Durkin

and

equal protection

equal

whether

an

protection
individual

confined in a Virginia detention center as part of a drug court

program is "similarly situated"

to an individual confined in a

Virginia detention center pursuant to a final sentencing order.
The difference

in classification between such individuals

(drug

10 According to the Probation Officer's report submitted by Petitioner,
Petitioner was "afforded the opportunity to complete the Stafford
Diversion Center program in lieu of termination from the Drug Court

program" after he used illegal drugs while participating in the drug
court program.

Pet'r's Objections, ECF No. 38 at Encl. 4.
26

court

participant

rational

that

basis

such

vs.

non-participant)

review

as

Petitioner

classification

impacts

a

appears

has

to

failed

suspect

require

to

class,

only

demonstrate

nor

has

he

proven the existence of a "fundamental right" to jail credit for

time spent in jail or diversion center confinement as part of a
pre-sentencing

drug

Giarratano,

F.3d at

521

court

rehabilitative

302-03

program.

Cf.

(applying rational basis review

to a Virginia statute precluding prisoners from making requests
under the Virginia Freedom of

"prisoners"
50,
an

are not

64-65

(1995)

individual

freedom
center

imprisonment"
"detained"

is

that

"not

a suspect class);

(concluding that,
has

restricted
is

Information Act

been

Reno v.

"released"

for

time

to

spent

a

on bail

in

credit

in

Koray,

515 U.S.

pursuant to federal statute,

through placement

entitled

and noting that

a

but

has

community

against

such center,

his

had his

treatment

sentence

whereas

of

a person

and committed to the Bureau of Prison's custody that

confined

by

the

BOP

during

such period

of

detention

at

a

community treatment center earns a sentencing credit).1X

11 Although Koray is a statutory interpretation case and not a case
focusing on the constitutionality of the federal sentencing system,
the

Supreme

Court's

sentencing

credits

("released

on

conclusion

makes

bail"

vs.

a

that

the

distinction

"detained"),

federal

based

rather

on

than

statute
a

governing

person's

the

nature

status
of

the

restrictions imposed on such person's liberty by the unique rules of a
specific detention center or community center, appears to support the
proposition that the United States Constitution does not require that

every day spent under restrictive conditions must be credited against
a

criminal

sentence.

Cf.

Randall

v.

27

Whelan,

938

F.2d

522,

525

(4th

Although

sentencing

there

credits

appears

in

sentencing programs,

to

the

a

be

limited case

context

case

from

of

the

drug
Georgia

provides a detailed (and exceedingly rational)

law

court

addressing

alternative

Court

of

Appeals

explanation as to

why a state authority would not grant credit for time spent in
confinement during a drug court program that

is

imposed as an

alternative to active incarceration in a penitentiary.
v.

State,

630

probationer

that

subsequently
detention

day."

S.E.2d 553
failed

sentenced

center

to

to

"with

Id. at 555.

(Ga.

Ct.

App.

complete

twenty

credit

On appeal,

a

to

for

2006) .
drug

In Stinson,

court

twenty-four

time

Stinson

served

program

months

a

was

in

beginning

a

that

the defendant contended that the

trial court erred by failing to award him "credit for the time
he

spent

in

a

Drug

included

both

houses.

Id. at 554-55.

the

appellate

impression,
and

we

undergo

offered

under

jail

Court

custody

court

rehabilitation
and

time

spent

program,"
in

three

which
halfway

In affirming the trial court's ruling,

concluded

that

"[o]n

this

issue

of

first

hold that a defendant who elects to plead guilty
alternative
OCGA

§

treatment

16-13-2(a)

is

in
not

a

Drug

entitled

Court
to

program

credit

for

Cir. 1991)
(noting that the defendant's contention "that the 'degree
of restraint' to which he was subjected at his residential center was
sufficient to constitute 'custody' . . . reveals a misunderstanding of
the relevant terms," and that "[t]here exists a strong presumption
that 'custody' refers to the legal authority of the custodian rather
than to actual housing conditions").
28

time

spent

in

treatment

if

he

is

subsequently

terminated

the program and sentenced on his original crime."
Explaining
the

the

rejection

of

the

defendant's

Id.

claims

on

at

from

554.

appeal,

Court stated:

[The defendant] was given the option at the beginning:
(1) he could suspend his criminal case, choose to sign
a Drug Court contract,
and enter a rehabilitation
program,
or
(2)
he
could be
sentenced and begin
serving his time.
The trial court advised him that if
he did not successfully complete the program, he would
be subject to two years in a probation detention
center followed by three years on probation.
He
signed the Drug Court contract and initialed the term
providing that if he were terminated from the program,
he

would

court."
said

be

sentenced

"within

the

discretion

According to the trial court,

numerous

times

that

he

wanted

of

the

[the defendant]

to

remain

in

the

program as opposed to being put in the system earlier.
For us to hold that his sentence began running when he
entered the program would constitute a "complete abuse
of the rehabilitative alternative of participation in
the Drug Court Program."
If time spent in Drug Court
rehabilitation equals time spent serving a sentence,
the
choice
between
Drug
Court
and
traditional
sentencing is meaningless.
Therefore,
we conclude
that the trial court did not err
Id.

at

....

556-57.

For

the

same

legitimate

reasons

that

Georgia

appears

to

have implemented a drug court program whereby a participant does
not earn "credits"
Hampton Drug
for

time

Court's

spent

in

detention center,
rational

against a subsequently imposed sentence,

basis

practice

drug

court

of

denying

credit

confinement,

be

it

to

individuals

in a

or a halfway house/community center,

review.

Notably,

29

if

an

the

individual

jail,

a

survives
received

credit

for

jail

sanctions

or

restrictive

housing

arrangements

that were imposed as part of a rehabilitative drug court program

the

incentive

to

complete

such

programs

may

not

be

as

high

because individuals could essentially "bank" credits to apply to

their subsequently imposed punishments.

Moreover,

an incentive

might be created for individuals guilty of crimes to pursue drug
court

placement

without

any

intention

of

taking

the

program

seriously or complying with the law because any days spent in
drug

court

center,

confinement,

which

is

ultimately serve

days

spent

restrictive

less

including

than

a

to reduce any

for the original crime.

of

a drug

manner

court

that

requires

a

as

of

"stick"

long-term

to

motivate

well

as

defendant

its

to

incarceration
the

drug

diversion

penitentiary,

would

the rehabilitative purpose

court

implementation

voluntarily

program as an alternative to incarceration,

threat

a

subsequently imposed punishment

Accordingly,

program,

in

acting

in a

enter

such

with the continuing

as

the

participant,

proverbial
provide

the

rational basis for treating drug court participant's differently

from those

sentenced to

jail

or

sentenced to

serve

time

in

a

detention or diversion center.

d. Unique Facts before the Court

Even

if

this

sentencing credit

equal

Court

for

believed

drug

protection clause

court

in some
30

that

a

state

participants

circumstances,

policy

denying

may violate

and/or

the

if this

Court had concerns as

the

Hampton

conclude

Courts

that

to the consistency with which the VDOC or

applied

such policy,

Petitioner

fails

the

to

Court

would

still

an

equal

demonstrate

protection violation based on the unique facts of this case.
When addressing equal protection claims associated with the
denial of
federal

credits for time spent in pre-trial confinement,
courts

presumption'
sentence

have

that

to

historically

applied

"a

jail

time"

whenever

the

the maximum sentence

States,

367

was

noted

"rejected"

Durkin,

F.2d 326,

presumption
opinion

for the offense of

by

387 F.2d 649

labeled

in

the

a

(D.C.

footnote

Fourth

(4th Cir.

Cir.

"irrelevant"
that

Circuit

1967),

does not exceed

see Stapf v.

1966) .

in

such

Durkin,

the

presumption

in Padgett

v.

Padgett,

12 At

case.'"

53 8

387 F.2d at 649)). 12

least with respect

F.2d

at

Accordingly,

104 0

such

Durkin

had

been

United States,

"with the effect being

Durkin,

United

Although

'to leave

the matter open to be determined according to the facts
particular

when

which the prisoner has

538 F.2d at 104 0;

329-30

in his

"sentence,

increased by the pre-sentence confinement time,

been convicted."

'conclusive

the sentencing judge had given credit

such

some

n.7

in the

(quoting

the resulting rule

to the sentencing of defendants

in federal

court, the majority of the cases discussing such presumption arose in
the 196 0s because in 196 6 Congress passed the Bail Reform Act which
statutorily modified the process for calculating sentences served by
federal inmates.
"Section 4 of the
[1966] Act
. . . provides
automatic

administrative

credit

to

all

31

[federal]

defendants

sentenced

asks

a

court

particular

to

case,

consideration

confinement
Bartley,

consider,

when

that

No.

whether

based
the

on

unique

sentencing

fashioning

a

occurred prior

to

5:09cv92,

the

judge

sentence

at *3

a

into

uncredited

Id.;

(W.D.

of

took

the

sentencing.

2010 WL 5019349,

facts

Va.

Miska v.
Nov.

23,

2010) .

Here,

13,

2010,

the

plea

agreements

expressly state

that

that

Petitioner

he was

to

signed

on July

receive a four year

active term of incarceration for his probation revocations and a

one year and eight month active term of
more

recent

having

such

shoplifting
sentence

conviction.
imposed

upon

The

incarceration for his
ever-present

failure

to

risk of

complete

the

after its effective date.
This provision is 'the Attorney General
shall give any such person credit towards service of his sentence for
any days spent in custody in connection with the offense or acts for
which sentence was imposed.'"
Bryans v. Blackwell, 387 F.2d 764, 766
(5th Cir. 1967) (quoting Public Law No. 89-465, 89th Cong. 2d Sess.,
Section 4,

June

22,

1966,

80

Stat.

214);

see also Stapf,

367 F.2d at

329 ("The 1966 act . . . assures credit for all [federal prisoners in]
presentence custody, and not merely custody for want of bail.").
Subsequent to the passage of the 1966 Bail Reform Act, the presumption
discussed in Durkin, and rejected by the Fourth Circuit in Padgett,
has still been applied when conducting a constitutional analysis of a
state court sentence where credit was not given for pre-trial custody.
See, e.g., Faye v. Gray, 541 F.2d 665, 668 (7th Cir. 1976) (conducing
Fifth and Fourteenth Amendment analysis and concluding, in a fractured
decision, that the defendant rebutted the "Stapf presumption" to the
extent it applied); Miska v. Bartley, 2010 WL 5019349, at *3 (W.D. Va.
Nov. 23, 2010)
(discussing the constitutional rights recognized in
Durkin, and the Fourth Circuit's rejection of the "presumption" in
Padgett, and concluding that a sentence imposed by a Virginia judge in
violation of the Virginia statute requiring credit for pretrial
confinement on facts that clearly demonstrated that the sentence,
which was fixed by the jury, did not reflect a "credit" for pre-trial
detention, "burdened" the defendant's "constitutional rights under the
Fifth,

Sixth,

and Fourteenth Amendments").
32

alternative drug court program served to encourage Petitioner to
take rehabilitation seriously,
later,

to take drug court seriously,

to take the diversion center program seriously.

agreements

were

not

ambiguous

Petitioner failed to complete

Petitioner's

probation

consolidated

violations

with

the drug

plea

clearly

respect

the

covering

" [I]f

the

of his

sentenced to four
Hampton Cir.
(emphasis

Ct.

(4)

(2) year sentences

Case File,

Similarly,

if

Rather,

all

of

his

does

the defendant

. . . revoked and be

years on the original conditions

Habeas

added).

outcome

defendant

not successfully complete the Drug Court program,

will have two (2)

The plea

court program.

agreement

states:

to

and

Case No.

. . . ."

CL12-1905

Petitioner's

at

64-65

separate

plea

agreement for his shoplifting conviction clearly states

"if the

defendant does not successfully complete the Drug Court Program,

the defendant will be
Penitentiary,

sentenced to five

with execution of

suspended for 5 years

(emphasis added).

three

(3)

(1 year 8 months

Therefore,

(5)

years in the State

years four

to serve) ."

prior to entering the

(4)

months

Id.

at

61

drug court

program,

Petitioner knew if he failed to complete the program he

would be

sentenced to five years and eight months imprisonment.

After failing to complete the drug court program,
2011,

the

four

years

sentence

Hampton

of

for

Circuit

active
the

Court

sentenced

incarceration,

shoplifting

offense
33

and

on October 5,

Petitioner

suspended

rather

than

all

to

only

of

the

imposing

the

one

year

and

agreement.

eight

month

sentence

as

stated

the

plea

Id. at 93-98.

Prior

to

extensive

issuing

testimony

Petitioner's

ECF

its

sentence,

from

mother,

himself.

trial

Petitioner's

Petitioner's

No.

the

4 9-4.

The

and

from

testimony

heard

the

background

heard

officer,
Petitioner

described

the

involvement in the drug

court program and the diversion center program.
therefore

court

probation

friend,

Petitioner's personal hardships and his

judge

in

of

the

The sentencing
case,

including

information about the length of time that Petitioner was at the

Stafford

Diversion

Center.

Id.

acknowledged and discussed the
for

a

total

of

incarceration.

specifically

five

Id.

asked

at

the

and

18-19,

court

18.

The

parties

two plea agreements

years
4,

at

that

called

of

active

Petitioner's

counsel

eight

months

47-51.

for

also

leniency

and

to

impose

a

sentence less than the five years and eight months contemplated
by

the

written

hearing,

the

plea

court

agreements.
found

"the

At

the

conclusion

defendant

had

of

violated

such
the

conditions of drug court and the plea agreement that placed him
into drug court."
was

giving

the

Id.

The

Petitioner

judge specifically stated that he

"four years

to

serve[,

and]

note[d]

that there is on the shoplifting charge a year and eight months
that

the

plea

agreement

calls

for

him

suspended that on the remaining portion."
34

to

serve,

but

Id. at 52-53.

I

have

Based on these unique facts,

it is clear to this Court that

an equal protection claim does not lie in this case because the
trial

court's

ultimate

sentence

took

into

account

Petitioner already spent incarcerated as part of
program.

Although

Petitioner

was

clearly

the

time

the drug court

sentenced

below

the

statutory maximum for his crimes, more important to this Court's
determination of whether the sentencing judge took into account
Petitioner's uncredited drug court confinement

is

the fact that

Petitioner was sentenced to substantially less imprisonment than
expressly

called

sentencing
aware

of

by

transcript
the

diversion
others,

for

nearly

center,

Petitioner

substantially less

his

written

reveals
four

and

that

months

knowing

received

a

plea

the

agreements.

sentencing

that

Petitioner

such

mitigating

sentence

requiring

The

judge

spent

in

fact,
him

was
the

among

to

serve

time in jail than he would have received if

the judge imposed a five year and eight month sentence but gave
Petitioner

credit

confinement.

for

all

of

Accordingly,

the

even

time

if

a

he

spent

different

in

drug

court

defendant

on

different facts may have a valid equal protection claim based on
the

denial

of

credit

spent

Virginia drug court program,
that

no constitutional

in

confinement

the facts of

as

part

of

the

this case demonstrate

violation occurred with respect

to

this

Petitioner.13

13

It appears that Petitioner's strongest argument
35

for a sentencing

This

Court's

demonstrate

an

conclusion

equal

that

protection

violation

Petitioner's citation to Charles v.

(2005),

Va.

(2009) .

sentenced to

In

Charles,

five years

Commonwealth,

one year active time).

The

defendant

probation,
resuspended

and
the

the

the

sentence,

at

shaken

not

to

by

270 Va.

was

four years

16.

court
and

violated

placed

the

20

278

suspended

After the defendant

the

revoked the

14,

initially

he was placed on probation.

thereafter

trial

Id.

fails

Commonwealth,

defendant

imprisonment with

served his active sentence,
17.

is

abrogated on other grounds by Rawls v.

213

(i.e.,

Petitioner

Id. at

conditions

of

his

suspended sentence,
defendant

back

on

credit pertains to the time he spent in jail between the date he was
expelled from the detention center program and/or administratively
terminated from the drug court program (Aug. 19, 2011) , and the date
that he was formally terminated from the drug court program by the
judge (Sept. 13, 2011).
However, because the state court records
suggest that Petitioner was still a drug court participant during this

time, see, e.g. , ECF No. 41-6, ^| 8, it appears that the state court
had authority to consider such period part of the drug court program.
Cf. Harris, 279 Va. at 545-46 (indicating that the defendant had "a
[conditional] liberty interest while he was participating in the drug
treatment court program as part of the plea agreement accepted by the
trial court" and that such conditional liberty interest "could be
revoked only by order of
the
circuit
court")
(emphasis added).
Moreover, because Petitioner received such a substantially reduced
sentence that was more than a year and a half less than the time
called for by his written plea agreements, on these facts, Petitioner
fails

to demonstrate

a

constitutional

violation based on the

which his reduced sentence was calculated.

Cf.

Goode v.

manner

in

Commonwealth,

No. 459-06-2, 2007 WL 895684, at *2 (Va. Ct. App. Mar. 27, 2007)
(finding that the defendant failed to demonstrate "a miscarriage of
justice" based on the lack of a sentence credit for time that he
allegedly spent in a detention/diversion center in part because the
defendant's "actual incarceration time," even including any time that
he "spent in the [detention/diversion] program," was less than his
original sentence).
Absent a constitutional violation, this Court
lacks authority to otherwise second guess the state court's procedure
for terminating a drug court participant from the drug court program.
36

probation

with

detention

center

defendant

the

condition

incarceration

completed

violated other

that

a

of

his

enter

program.

five-month

terms

he

four

receive

years

active

probation.

credit

incarceration.

against

a

After

the

center

program,

he

Id.

The

trial

court

and imposed a sentence

Id.

Id.

Appeals

of

discretion

concluded
to

that

determine

sentence,

the

whether

trial

the Virginia Court

judge

defendant

time

the

defendant

equivalent of
to

four years

at

spent

imprisonment,

18-19.

in

the

[the defendant's]
The

Court

court

However,

the

that

the

center

was

the

detention

trial

credit

finding

and "by sentencing
the

sufficient

receive

Id.

reversed such holding,

incarceration,

incarceration to
Id.

Court

had

should

for the time spent in the detention center.
Virginia Supreme

for

not

months he previously spent in the detention center program.

to his

sentence

did

five

challenge

four-year

Petitioner

the

Upon defendant's

that

complete

Id.

detention

again revoked the defendant's probation,
of

and

[the defendant]

added

five

months

original five-year sentence."

concluded that

absent

clear statutory

authority to do so, the trial judge lacked discretion to extend
imprisonment
Id. at 19.
final

beyond

the

originally

Stated differently,

sentence

was

five

imposed

five

year

sentence.

because the defendant's original

years

imprisonment,

the

maximum

aggregate time he could be required to serve in confinement was
five years.
37

In

contrast

incarceration,

to

Charles,

even

here,

including

confinement during the

Petitioner's

all

the

time

drug court program,

four

years

charges,
than

and

seven

therefore

months

active

time of

Under

less

conviction.

the

than

any

Accordingly,

imposed

court's

and

authority

No. 459-06-2,
(finding

of

the

"miscarriage of

14 Petitioner's

less
has

twenty-two years

and he has served no

imposed on his

appears

discretion.

defendant

justice"

filings

to

2010

shoplifting

the manner in which Petitioner's sentence

calculated
and

the

these

unlike the sentencing court's abuse of

2007 WL 895684,

that

on

Petitioner

calculation,

five years

five years

discretion in Charles,

was

in

As of the date of

incarceration

originally imposed on his 2008 convictions,

active

spent

his drug court confinement amounts

months.

served

active

Petitioner has been sentenced to a total of

three

and all of

he

of

does not come close

to approaching his original final sentence.14
the instant opinion,

term

at *2

to
See

be
Goode

within
v.

(Va. Ct. App.

failed

to

occurred when he

the

Commonwealth,
Mar.

demonstrate

was

trial

27, 2007)
that

a

not given credit

in this Court erroneously conclude that the

"statutory maximum" sentence in this case "is four years as that was
the original sentence imposed in 2008."
Pet'r's § 2254 Supp. 5, ECF
No. 18.
In reality, Petitioner was sentenced to a total of twenty-two
years in 2008 (two years each on six different counts of conviction
and ten years on a seventh count).
Accordingly, when Petitioner's
probation on these
seven 20 08
convictions was
revoked in 2 010,
Petitioner, having previously been sentenced to only three months
active time, was actually facing a statutory maximum of up to twentyone years and nine months incarceration,
plus whatever time he
received on the more recent shoplifting conviction.
38

against

his

active

sentence

for

time

allegedly

spent

in

a

diversion and detention center program because, even accounting
for

the

time

spent

in

such

program,

the

total

period

of

incarceration was less than the sentence originally imposed).
Moreover,

four

years,

focusing

even

if

on

such

Petitioner's

sentence

is

current

viewed,

sentence

as

of

argued

by

Petitioner,

to be an effective sentence of four years and seven

months

to

does

due

not

his

drug

the

exceed

incarceration that

court

five

confinement,

year

and

such sentence

eight

month

Petitioner expressly agreed

to

written plea agreements that he, his attorney,
the Commonwealth,

still

term

serve

of

in the

the attorney for

and the Hampton Circuit Court Judge all signed

immediately before

Petitioner

entered

the

drug

court

program.

If the trial judge had the authority to sentence Petitioner to a
term

of

imprisonment

confinement,

would

that,

have

even

required

after
him

to

credit

for

serve

drug

more

court

than

five

additional years in the state penitentiary (five years and eight
months

minus

seven months

of

claimed

drug

court

the judge surely did not offend the United States
by

sentencing

years

Petitioner

additional

15 As noted above,

to

a

lesser

incarceration.15

the Charles

overall

Constitution

sentence

Furthermore,

case involved an

confinement) ,

even

initial

of

if

four

the

probation

revocation whereby the defendant was placed back on "probation" with
the condition that he complete a five month detention center program.
After completing such program, the defendant had just spent five
39

sentence,

as

improper

under

permitted a
months,

imposed and

sentence

law,

of up

any procedural

therefore not

McGuire,

Virginia

implemented,

error

because

to at
is

a

62,

67-68

somehow procedurally

Virginia

least

five

matter

of

cognizable on federal

502 U.S.

is

(1991) .

habeas

law

years
state

review.

The unique

clearly

and

eight

law and

is

Estelle v.

facts of

this

case therefore do not support an equal protection violation.

months in conditions equating to jail "confinement," yet such five
months was not "credited" against any active sentence as there was no
active sentence to be satisfied at that time.
Although the Supreme
Court of Virginia concluded that the five months of "confinement"
could not be ignored when the sentencing court later imposed a new
active sentence that brought the total active sentence to the maximum
that was allowable in that case,
nothing in the court's opinion
indicated that a period of time spent in a detention center must
always be applied against some active sentence.
Notably, had the
defendant in Charles followed all rules of probation after he was
released from the detention center he would have

served five months

of

confinement that he never received a "credit" for against any active
sentence.
Such result, however, does not appear to offend Virginia
law or the United States Constitution.
Similarly, there is not an
apparent constitutional violation when days spent in jail, or a jail
equivalent, that are part of a rehabilitative drug court program are
not "credited" against a later sentence when the later sentence is not
only far below the statutory maximum,
but below the stipulated
sentence set forth in a defendant's plea agreement.
Cf. Goode, 2007
WL 895684, at *2.
This is so because a day spent in jail is not
rendered unconstitutional
merely because
it
is
never ultimately
applied as a credit to an active sentence.
For example, an individual
who is acquitted after a trial may have been confined pre-trial, yet
because no sentence is ultimately imposed, no "credit" is ultimately
received.
Likewise, detention in jail on charges that are later
dismissed is not "credited" against any active sentence, yet it
remains constitutional.
Wallace v. Jarvis, 726 F. Supp. 2d 642, 647
(W.D. Va. 2010) .
While Charles indicates that a day spent in a
Virginia detention center is the equivalent of day spent in a jail,
and that the days spent in jail on a given conviction may not
accumulate to a period of time greater than the maximum original
sentence,
such
proposition
does
not
establish
a
constitutional
violation when prior diversionary confinement days remain "unapplied"
to an active sentence yet decades of the originally imposed sentence
remain suspended.
40

For

the

reasons

set

overcome

the

procedural

forth

above,

default

Equal Protection claim.

of

Petitioner

his

Alternatively,

fails

to

Fourteenth

Amendment

he fails to demonstrate

that such claim is meritorious.

2. Petitioner Fails to Demonstrate Prejudice Resulting
from a Fourteenth Amendment Due Process Violation

In

addition

to

protection claim,
references

However,

the

asserting

a

Petitioner's

due

process

Fourteenth

Amendment

equal

first ground for relief briefly

clause

of

the

Fourteenth Amendment.

the only fact or argument Petitioner appears to advance

in support of such claim is that Petitioner's sentencing orders
both

call

awaiting

for

a

credit

trial,"

but

for

the

"time

VDOC

subsequent and conflicting

spent

is

in

confinement

purportedly

"instruction"

relying

while

on

a

by the Hampton Circuit

Court that Petitioner receive no credit for the days he spent in
confinement as part of the drug court program.

Petitioner's limited facts and argument implicating his due
process
or

even

rights
a

argument

fail

violation
overlooks

confinement while

to
of

trial

process.

diversionary

Virginia

the

a

constitutional

law,

distinction

as

that

Time

is

between

time

cursory

spent

and time

spent

in
in

entirely separate and apart from

spent

rehabilitative

violation,

Petitioner's

"awaiting trial or appeal"

drug court confinement

the

demonstrate

drug

41

in

confinement

court

program

as
is

part

of

the

confinement

that

resulted

from:

(1)

Petitioner's

request

to

join the

drug

court program in order to allow him the opportunity to avoid the
imposition of a lengthy prison sentence;

failure to abide by drug court rules.
§ 53.1-187

credit

does

against

it

state

a later

that

a

sentence

and

Petitioner's

Nowhere in Virginia Code

defendant

for

(2)

time

must

spent

be

awarded

in drug

a

court

confinement stemming from such individual's failure to abide by
drug court rules, which in the instant matter,

occasions,
criminal

on at least two

appears to be based on the commission of additional

acts.

Cf.

Estelle,

502

U.S.

at

67-68

(reemphasizing

the well-established proposition that "it is not the province of
a

on

federal

habeas

state-law

court

questions"

to

reexamine

as

a

state-court

"federal

court

determinations

is

limited

deciding whether a conviction violated the Constitution,
or treaties of

the United States").

Rather,

the

that regardless of the instructions of a court,

statute

to

laws,
states

a defendant is

to receive credit for time spent in confinement while "awaiting
trial or pending an appeal."

Va. Code § 53.1-187.

Accordingly, here, there does not appear to be any conflict
between

the

sentencing

court's

instructions

that

Petitioner

receive credit for time spent in confinement awaiting trial,16

16

It is undisputed that Petitioner received "credit" for the days he
was confined before his drug court program began, and for those days

he spent "awaiting sentencing" after he was formally terminated from
the drug court program on September 13, 2 011.
42

and the Hampton Circuit Court's/VDOCs apparent practice,17 or at
a

minimum,

decision

confinement

that

court program.

in

was

this

part

As above,

case,

of

not

confinement

at

award

Petitioner's

the constitutional

by the Fourth Circuit in Durkin are
the

to

issue

credit

diversionary

for

drug

concerns discussed

simply not implicated when

stems

from

an

alternative

rehabilitative program that a defendant voluntarily enters after

he admits his guilt.

Accordingly,

Petitioner's limited argument

fails to demonstrate that the denial of a credit for drug court
confinement

is

a

violation

of

Virginia

law,

let

alone

demonstrate that such practice is a violation of the due process
clause of the United States Constitution.

62,

67-68

("'Cases

in

this

Court

See Estelle,

have

long

proceeded

premise that the Due Process Clause guarantees
elements

of

never been

fairness

thought

in a

that

criminal

such cases

trial

on

the

the fundamental

....

establish

502 U.S.

But

it

this Court

has

as a

rulemaking organ for the promulgation of state rules of criminal

17 Included in Petitioner's

state habeas

file is an affidavit

from the

"Manager of the Court and Legal Services Section" for the VDOC
indicating that calculating a sentence without credit for drug court
time is, in the eyes of VDOC, "in accordance with applicable Virginia
statutes and time computation practices."
Hampton Cir. Ct. Case File,
Case No.

CL12-1905 at 99-101.

Additionally,

both VDOC records and the

Hampton Circuit Court's "Final Order" dismissing Petitioner's state
habeas petition indicate that it was also the position of the Hampton
Circuit
court

Court

that

confinement.

Petitioner
Id.

at

was

103-04.

not

116.

43

entitled

to

credit

for

drug

procedure.'"
385 U.S.

(omission in original)

554,

563-64

Moreover,

only

this

for

argument

noted

Texas,

(1967))).

inmate

reasons

Court

Spencer v.

even if this Court assumes that Petitioner is the

Virginia

manner,

(quoting

finds

fails

above,

whose

similar to

that

to

sentence

unique

a

calculated

equal

Petitioner's

demonstrate

the

the

was

undeveloped

of

such

protection analysis,

constitutional

facts

in

this

due

process

violation.

case

involve

As

the

sentencing judge imposing a sentence substantially less than the
five years and eight months called for by Petitioner's written
plea agreements.

being

informed

The judge imposed such reduced sentence after

of

the

lengthy period

of

time

that

Petitioner

spent in a diversion center as part of his drug court program.
Although

Petitioner

sentencing
spent

asserts

hearing

he

in drug

Virginia

that

court

lacks

that

would

confinement,

constitutionally

he

not
he

was

receive
does

not

adequate

unaware

at

his

credit

for

time

demonstrate

that

procedures,

"process," for challenging his sentencing calculation.

Petitioner demonstrate

i.e.

Nor does

that the state has such procedures, but

that they were applied in his case in a manner that denied him a

meaningful
sentence.

opportunity

to

To the contrary,

challenge

the

state

habeas

petition

of

his

the record suggests that Petitioner

first pursued such issue administratively,
a

calculation

challenging
44

the

and thereafter filed
manner

in

which

his

sentence was calculated.

Such state petition was denied on the

merits by the Hampton Circuit Court,
such

ruling

therefore

was

fails

denied

to

on

and Petitioner's appeal of

procedural

demonstrate

that

he

grounds.

was

Petitioner

denied due

process

based on the manner in which his sentence was calculated.18
As

set

procedural

claim.

forth

above,

default

of

Alternatively,

Petitioner

his

fails

Fourteenth

to

overcome

Amendment

Due

the

Process

Petitioner fails to demonstrate that such

claim is meritorious.
3.

In

addition

Petitioner's

Amendment

to

first

right

his

The Fifth Amendment

reliance

ground

against

for

on

relief

"double

the

Fourteenth Amendment,

asserts

jeopardy"

was

that

his

Fifth

violated by

the

denial of sentencing credits for the time he spent incarcerated

18 Although a criminal defendant's failure to fully understand all
aspects of a state criminal process or procedure does not always have
constitutional implications, it would appear that prosecutors, defense
counsel, the judges of the court, the public, and most importantly,
criminal defendants, are best served by transparency from the outset.
Pursuant to Virginia Code § 18.2-254.1(J):
"Participation by an
offender in a drug treatment court shall be voluntary and made
pursuant only to a written agreement entered into by and between the
offender

and

the

Commonwealth

with

the

concurrence

of

the

court."

Although this Court is not privy to the conversations between defense
counsel

and

Petitioner,

or

matters

discussed

at

all

state

court

proceedings, it would appear preferable to all those involved in the
process to clearly disclose in writing in a drug court "contract" or
written plea agreement, that time spent in drug court confinement will
not be credited against a subsequently imposed sentence.
If such
written disclosure existed here, not only would it have made matters
more predictable for Petitioner, but it may have drastically reduced
the
matters
in
dispute
in both
the
state
and
federal
habeas
proceedings.
45

as part of

the drug court program.

"No person shall
twice

put

amend.

V.

this

in

subject
life

context of

described

case

be

jeopardy of

In the

Court

Durkin

...

that

the

was

The Fifth Amendment states

or

for the
limb

.

same offence

.

.

."

U.S.

sentencing credits,

double

jeopardy

subsequently

be

Const,

a judge from

implications

appealed

to

to

the

in

the

Fourth

Circuit:

[T] he failure to give post-conviction credit to a
convicted person who remains in confinement pending
appeal effectively punishes that person twice for the
same offense.
Punishment is exacted once by confining
the person from conviction to final disposition of his
appeal, and is exacted again when the convicted person
begins service of his sentence.
The Fifth Amendment
guarantee against double jeopardy, made applicable to
the states by the Fourteenth Amendment,
Benton v.
Maryland,
395
U.S.
784
(1969),
'protects against
multiple punishments for the same offense.'
North
Carolina v. Pearce,
395 U.S.
711,
717
(1969) .
In
order to preclude the possibility, therefore, that a

convicted person will suffer multiple punishment for
the same offense in violation of the 'double jeopardy'
clause, the state must, as does Virginia, . . . fully
credit post-conviction confinement toward the sentence
to be served by a criminal defendant because it is
'punishment already exacted,' Id. 395 U.S. at 718, 89
S. Ct. 2072, 23 L.Ed.2d 656.
As Judge Butzner stated
for

the

Carolina,
convicted

Fourth

Circuit

438

F.2d

criminal

in

Wilson

284,

286

defendant

v.

State

(4th

is

'.

Cir.
.

.

of

North

1971),

a

entitled

to

credit for the entire period he was detained after he
was placed in jeopardy for the offense resulting in
his conviction

Durkin

appeal,

v.

Davis,

the

.

390

Fourth

.

.

F.

.'

Supp.

Circuit

249,

254

made

regarding the double jeopardy analysis:

46

the

(E.D.

Va.

following

1975) .

On

statement

[A]
double jeopardy violation is premised on the
conclusion that [p]retrial detention is nothing less
than punishment.
Under this premise, such punishment
is considered multiple punishment since no credit is
given on the subsequent sentence imposed for the

single offense.
equally multiple

The double jeopardy clause prohibits
punishments and multiple convictions

for the same offense.

Durkin,

538 F.2d at 1041 (internal citations and quotation marks

omitted).

Therefore,

defendant
trial

a

or

sentencing credit

awaiting

violation,

although

for

an

appeal

similar

failure

for
can

reasons

time

to

give

spent

amount

to

to those

a

detained

in jail

an

Fifth

awaiting
Amendment

discussed above within

this Court's Fourteenth Amendment analysis,

Petitioner fails to

demonstrate that his Fifth Amendment rights were violated.
As

noted

by

the

Fourth

Circuit

in

Durkin,

pre-trial

detention or detention pending an appeal are "nothing less than
punishment"
award

a

for the underlying criminal offense,

credit

punishment

in

some

Petitioner was
while he was
he

was

for

not

such

time

can

circumstances.

Id.

incarcerated during

"awaiting trial"

attempting

therefore

to

or

complete

to

contrast,

drug

diversionary

non-punitive

may have resulted in Petitioner serving zero days

penitentiary.

rules

rather,

complied with,

state

all

here,

court program

"awaiting an appeal";
a

double

program

rather

if

his

amount

rehabilitative

in confinement

that,

In

and failure to

than five years
However,

47

and procedures

and eight months

because

Petitioner

were

in

failed

the
to

follow the rules of the drug court program,

time

in

confinement.
designed

however,

crimes,

Such

to

drug

punish

but was instead:

(1)

court

he did in fact spend

confinement

Petitioner

for

his

was

not,

underlying

intended to punish Petitioner for

the post-offense failure to follow the rules and procedures of
the drug court program; and (2)

intended to encourage Petitioner

to follow the program rules and successfully rehabilitate which

would

allow

him

sentence.

sentence

the

opportunity

Therefore,

that

avoid

receiving

than

rather

to

being

required

unconstitutionally punished

the same conduct,

an
to

Petitioner

active
serve

twice

a

for

Petitioner was confined during the drug court

program for drug court violations

(and his

longest confinement

in the diversion center was based on his choice to participate
in such program in lieu of drug court termination) , and he was

later punished separately,
program,

for his

after discharge

underlying

crimes

from the drug court

by being

sentenced

to

four

revealing

that

years imprisonment.

In

addition

to

the

instant

fact

pattern

Petitioner was not punished twice for the same conduct,

the

the

Court assumes

equivalent

Petitioner
twice."

drug

fails

that

of

Petitioner's drug court

"punishment"

to demonstrate

for

his

that he

confinement was

underlying
was

in

confinement,

he

was
48

subsequently

offenses,

fact

Although Petitioner received no official

court

even if

"punished

"credit"

sentenced

to

for

only

four years incarceration,

rather than the five years and eight

months called for by his written plea agreements and to which he

explicitly agreed.

Because his four year term of imprisonment

plus his drug court confinement aggregates to far less than five
years

and

before he

eight

months,

the

Petitioner

agreed

even started the drug court program,

to demonstrate that he was
Fifth Amendment

For

overcome

time

the

serve

Petitioner fails

in violation of the

to the United States Constitution.

reasons

the

"punished twice"

to

set

procedural

Alternatively,

he

forth

default

fails

to

above,

of

his

Petitioner

fails

Fifth Amendment

demonstrate

that

such

to

claim.

claim

is

meritorious.
4.

In addition to
the

Fifth

and

The

Sixth Amendment

considering constitutional violations under

Fourteenth

Amendments,

the

R&R

addressed

the

impact on a criminal defendant's Sixth Amendment right to a jury
trial that can result based on the improper denial of sentencing

credits for time spent in confinement "awaiting trial."

recognizes

that

trial

earning

and

guilty,

may

guilty

plea

R&R at

15,

However,

"'[t]he
no

credit

[improperly]
so

that

ECF No.

prospect

he

34

toward

induce
can

of

the

start

lingering
one's

(quoting Durkin,

jail

sentence,

defendant

serving

in

off

390

F.

to

give

his

The R&R

if

until
found

a quick

sentence.'"

Supp.

at

253) .

based on this Court's analysis factually distinguishing
49

drug

court

confinement

Petitioner's

Sixth

from

Amendment

confinement
right

to

"awaiting

a

jury

trial,"

trial

is

not

implicated based on the fact pattern before this Court.
As

discussed

Petitioner

guilt

and

seeks

herein,
credit

every

day

occurred

of

after

confinement
Petitioner

entered into two plea agreements,

probation

violations,

shoplifting

and

charge.

one

plea

which

admitted

his

one governing his

governing

Petitioner's

for

his

bargain

subsequent
with

state

prosecutors was predicated on Petitioner's voluntary efforts to

enter

and

complete

sentenced to

the

a term of

drug

court

imprisonment

program
in the

in

such

program,

Petitioner

would

imprisonment on his probation violations,
months

imprisonment

before

this

Court

on his
in

no

shoplifting

way

actions were motivated by his

suggest

trial and earning no credit toward [his]

being

upon failure to

receive

four

years

and one year and eight
conviction.

that

fear of

of

state penitentiary.

Petitioner's plea agreements clearly state that,
complete

lieu

any

of

The

facts

Petitioner's

"lingering in jail until
sentence."

Id.

To the

contrary, had Petitioner asserted his innocence and continued to
trial,

he would have received a credit for every day he spent in

jail awaiting trial pursuant
however,

was not

confined

to Virginia statute.

"awaiting trial"

for which he now seeks credit.

Rather,

50

Petitioner,

for any of

the days

he was confined as part

of

a

diversionary

disposition

program

that

was

intended

to

rehabilitate him and avoid a lengthy active prison term.
Accordingly,

Petitioner

default bar based on the
Amendment.
squarely
claim,

the

merits

for the

the

Court

overcome

the

procedural
Sixth

even if this Court were permitted to

merits

would

to

guarantees provided him by the

Alternatively,
address

fails

of

conclude

a

potential

that

such a

Sixth

Amendment

claim fails

on the

same reasons discussed herein.

5. The Eighth Amendment

Petitioner's amended § 2254 petition also asserts
denial

of

sentence

confinement
against
VIII.

for

his

Eighth

violates

"cruel

and

unusual

The R&R before

Eighth
either

Amendment
the

conclusion

that

perform a de
not

this

of

he

spent

Amendment

Court does

and

such

there

time

punishments."

argument,

absence

Accordingly,

does

credits

not

was

an

does

Eighth

the

court

protecting

Const,

reference

or

drug

right
U.S.

Petitioner
analysis

in

that the

amend.

Petitioner's

not

object

absence

Amendment

of

to
a

violation.

it does not appear that this Court is required to

novo

appear

Court to adopt,

review of

that
out of

the

such issue.

R&R

includes

an abundance of

However,
any

because

analysis

caution,

for

it

this

this Court has

reviewed such issue de novo.

Petitioner's
contention that,

Eighth

Amendment

claim

is

predicated

on

the

when his drug court confinement is considered,
51

he is being required to serve more than the statutory maximum
sentence

for his crimes.

As discussed at length herein,

even

considering Petitioner's drug court confinement, he is currently
serving a term of incarceration of less than five years total,
which is far less than the "statutory maximum."
to

his

sentencing

in

2011,

years of suspended time

Petitioner

had

Notably, prior

nearly

twenty-two

that could be imposed on his probation

violations and up to five years of additional time that could be
imposed on his more recent shoplifting conviction.
Petitioner's

current

sentence,

drug court confinement,
active
plea

sentence

that

agreements.

offends

the

when

aggregated

with

his

is approximately one year less than the

Petitioner agreed to serve

Far

United

even

Furthermore,

from

States

being

sentenced

Constitution,

in his

to

a

written

term

Petitioner

that

received

leniency at sentencing.

Accordingly,

Petitioner

fails

to

excuse

his

failure

timely appeal the Hampton Circuit Court's habeas decision,
constitutes

procedural

default,

by

demonstrating

stemming from an Eighth Amendment violation.

the

extent

analysis,

this

Court

Petitioner's

is

permitted

to

Eighth Amendment

the merits.

52

claim

which

prejudice

Alternatively,

perform

a

merits

plainly

to

to

based

fails

on

6. Summary of Respondent's First Objection

As

explained in detail above,

after conducting a de novo

review of the issues covered by Respondent's

first objection,

this Court sustains such objection and concludes that Petitioner

fails

to

demonstrate

default.

state

The

habeas

Virginia

where

state

"prejudice,"

or

on his claim[s]
to

procedural

all

when

Court

separate

rule

the

demonstrate

"a

and

the

that

to

excuse

has

out

of

discussed

prejudice

sufficient

state

his

370

and

procedural

(4th Cir.

2006)

[the federal courts]

respect

the

above,

to

"cause"

procedurally defaulted

petitioner

the precise contours of
reasons

independent

both

443 F.3d 342,

petitioner

the

Petitioner's

comity dictate that such

demonstrates

claim

procedural

in the uncommon circumstance

innocence"
True,

his

dismissed

. . . comity instructs that

consider

regardless of
for

prisoner
"actual

that

overcome

and the rules of

See Hedrick v.

(indicating

decline

Supreme

left undisturbed except

a

default.

to

motion based on a

law procedural rule,

ruling be

prejudice

for

the

violated").

Here,

"prejudice"
Petitioner

overcome

his

state

inquiry,
fails

to

procedural

default.

Although it is arguably circular to conduct what is akin to
a merits based analysis
able

to

overcome

his

in order to

procedural

determine

default,

in

if
the

Petitioner is
context

of

a

§ 2254 habeas motion alleging constitutional violations where a
53

Petitioner has demonstrated "cause" for his procedural default,

such procedure

appears

See

Clarke,

Wolfe

v.

(indicating that,
district
Brady

court

claim's

meritorious");

Cir.

198 9)

an

691

F.3d

necessarily finds
default

when

Giarratano v.

actual

approved method of
410,

420

(4th

that,

it

sufficient

(finding no
actual

19

determine [s]

Procunier,

because

infringement

of

at *2

(4th Cir.

prejudice

when

1987)

the

891

the
his

district

2012)

that

courts

from

for

claim

F.2d 483,

petitioner

the

to

489

be

(4th

failed

Fifth Amendment

a

to

rights,

825 F.2d 406,

(unpublished table opinion)

facts

failed

to demonstrate

an

19

Fifth Amendment violation!

Several

Cir.

"prejudice

he failed to show prejudice); Henderson v. Majors,

1987 WL 38125,

analysis.

at least with respect to Brady violations,

(noting

demonstrate

to be

outside

the

Fourth

Circuit

have

expressly noted the overlap between prejudice analyses and meritsbased analyses.
For example, in Tyler v. McCaughtry, 293 F. Supp. 2d
920
(E.D. Wis.
2003),
the district court provided a detailed
discussion
of
the
uncertain
state
of
the
law
regarding
the
"methodology" for analyzing prejudice, noting that the Sixth Circuit
"assume[s] that a petitioner's claim has merit and then determine[s]
whether the
claimed error was prejudicial,"
whereas the Seventh
Circuit has at times appeared to apply the Sixth Circuit approach, and
at times appeared to indicate that a court "must examine the merits of
Id. at 925-26 (citing
a defaulted claim" to determine prejudice.
cases).
The Tyler opinion also noted that "[i]n Strickler v. Greene,
527 U.S. 263 (1999), in determining whether a petitioner had shown
prejudice in connection with the procedural default of a Brady claim,
the Supreme Court did not assume that the claim was meritorious but
rather analyzed its merits."
Id. at 926.
Although the Tyler district
court questioned the analytical need for a "prejudice" prong if a
petitioner demonstrates
"cause,"
it acknowledged that
a
"cause"
determination was required by controlling law and ultimately ordered
additional merits based briefing so that the court could conduct its
prejudice analysis.
Id. at 929-30;
see U.S.
ex rel.
McCalla v.
54

However,

if this

Court should either assume prejudice for

the purpose of the procedural inquiry based on the nature of the
rights

at

stake,

Petitioner

or

should

satisfied

constitutional

claims

his

have

otherwise

procedural

still

fail

on

fails

to demonstrate

a violation of

based

on

in

Court

calculated

the

manner

inquiry must
Hampton

even

Court's

if

the

confinement

constitutional

the

sentence,

conducted de

Circuit

Notably,
court

be

his

which

novo,

the

VDOC

giving

could,

violation,

credit

on

other

here,

no

state

of

no

Petitioner

constitutional
and/or

for

Hampton
that

Circuit

the

habeas

merits

facts,

which was

to

the

decision.

spent

in

result

constitutional

occurred because Petitioner's sentence,

rights

deference

time

that

Petitioner's

merits.

assuming

merits-based

denial

burden,

his

even

concluded

drug
in

a

violation

imposed after

he failed to complete the drug court program by a judge familiar
with the relevant facts,

Gramley,

No.

96-C-0418,

required him to serve a total aggregate

1996

WL

699629,

at

*5

(N.D.

111.

Nov.

27,

1996) (noting that the success of petitioner's Fourth, Sixth, Eighth,
and Fourteenth Amendment claims depended on a showing of prejudice,
and "[a]ctual prejudice depends on the merits of his constitutional
claims; unless the claims are meritorious,
[the petitioner]
will
suffer no prejudice from a finding of procedural default"); David
Goodwin, Habeas Disharmony: The Dissents in Trevino v. Thaler and
Mcquiggin v. Perkins, 41 Rutgers L. Rec. 116, 130 (2014) (noting that
"the 'cause and prejudice' standard has a pseudo-merits inquiry built
into

it");

Justin

F.

Marceau,

Is

Guilt

Dispositive?

Federal

Habeas

After Martinez, 55 Wm. & Mary L. Rev. 2071, 2115 (2014)
("Leading
habeas scholars have observed that the
'rare exceptions to this
[procedural
default]
rule
precluding
postconviction
relief
for
constitutional violation are . . . results-oriented inquiries.'")
(citations omitted).
55

sentence of

plea

less

time

agreements.

than he

agreed

Petitioner's

to

first

serve

ground

in

his

for

written

relief

is

therefore DISMISSED and DENIED.

B. Objection to the De Novo Standard of Review

Respondent's
standard
Thomas

of

v.

deference
habeas
the

In

light

of
the

F.3d 105

to

the

in

the

(3d Cir.

Hampton

Court's

Court's

procedural

based analysis,

challenges

2009),

was

that

bar,

Respondent's

the

novo

citing

to

concluded that no

merits-based

in effect

"replaced"

procedural

Petitioner

which

ruling.

fails

precludes

second objection

and this Court therefore finds it

de

which,

Court's

subsequent

conclusion
default

R&R

Circuit

such analysis

Supreme

this

objection

recommended

because

Virginia

overcome

merits

570

owed

analysis

by

moot,

review

Horn,

is

second

is

a

to

true

deemed

unnecessary to squarely

resolve such objection. 20

20 Although this Court's analysis in preceding sections alternatively
addresses

the

merits

of

Petitioner's

claims,

and

does

so

de

novo

giving no deference to the state trial court's merits-based habeas
ruling, the Court does so assuming without deciding that de novo is
the proper standard of review.
As detailed above, even under a de
novo

review

standard,

which

is

the

most

favorable

standard

to

Petitioner, his first ground for relief seeking sentencing credits
fails on the merits.
Similarly, Petitioner's second through fourth
grounds for relief fail on the merits even giving no deference to the
prior state habeas court's merits-based analysis for the reasons
stated in the R&R, which were not objected to by Petitioner, and were
adopted above, as such analysis contains no clear error.
Because all

pending

grounds

for

relief

can

be,

resolved without the need to squarely
objection, this Court declines to do so.
56

and

have

address

been,

conclusively

Respondent's

second

C. Objection to Finding That Petitioner was "Awaiting
Trial" during the Drug Court Program

Respondent's

third

objection

appears

to

challenge

conclusion in the R&R that Petitioner was entitled to a

the

sentence

credit for time he spent in jail during his drug court program
because

the

sentencing

court

ordered

Petitioner

to

receive

a

credit for all time spent in confinement while "awaiting trial."

This Court has fully addressed such matter within its analysis
resolving

Respondent's

first

objection,

and

in

light

of

such

analysis and ruling, no further ruling or analysis is necessary.
D. Objection to Waiver

Respondent's fourth objection challenges the finding in the
R&R

that

Respondent

"waived"

the

opportunity

to

address

the

merits of Petitioner's claims based on Respondent's decision to
focus

responsive

default.

filings

only

on

Petitioner's

procedural

This Court declines to squarely address such objection

as it is rendered moot in light of both the de novo review this
Court performs

as

objections

made,

1117-18

are

(4th

to any portion of

Cir.

United

1992),

States

and

this

the R&R
v.

to which

George,

Court's

971

finding

specific

F.2d

herein

1113,

that

Petitioner fails to overcome his procedural default.
That

said,

it

appears

to

the

Court

that

the

Magistrate

Judge entered a standard order instructing Respondent to file a
"Rule 5 Answer"

to the § 2254 petition,

57

and Rule 5 of the Rules

Governing § 2254 Proceedings clearly states that an answer must

both "address the allegations in the petition" and identify any
procedural

infirmities

Proceedings

in

Respondent's

in the petition.

U.S.

Dist.

contention

that

R.

Governing

Cts.

11(a)

(emphasis

that

Magistrate

§ 2254
added).

Judge

made

a

procedural error by ruling on Petitioner's habeas motion rather

than

ordering

Respondent

to

file

a

second

Rule

5

Answer

addressing the merits of Petitioner's claims appears to overlook

the

express

requirement

for

the

filing

of

a

complete

Rule

5

Answer.

V.

PETITIONER'S

Petitioner's

Magistrate
credit

Judge's

against

Diversion

Center

court program.
argues

lone

that

objection

finding

his

OBJECTION TO

that

sentence

Program,

to

the

time

was

"time

spent

at

the

challenges

should

spent

part

Pet'r's Obj . to R&R 3,

R&R

R&R

Petitioner

for

which

THE

of

in

the

receive
Stafford

Petitioner's

ECF No.

Diversion

not

37.

the

drug

Petitioner

Center

should

be

credited toward this sentence because time spent in this program
is considered incarceration."

Id. at 2

(citing Charles,

270 Va.

at 20).

Having considered such issue de novo,
forth

above

habeas
credits,

claim

as

part

that

he

of

this

was

Court's

for

analysis

unconstitutionally

the
of

reasons

set

Petitioner's

denied

sentencing

this Court rejects Petitioner's assertion that he must
58

be

awarded

"credit"

for

the

days

he

spent

in

the

diversion

center.

Notably, even assuming that the days Petitioner spent

at

Stafford

the

"incarceration,"

Diversion
similar

to

(1) fails to overcome his
demonstrate

that

he

Center
that

in

were

the

Charles,

procedural default;

has

a

meritorious

equivalent
Petitioner

and

(2)

claim

of

both:

fails to
that

his

constitutional rights were violated by the denial of credit for
time spent in drug court confinement
jail

equivalents).

procedural

argument,
and

this

default

Because

or

(to include both jail and

Petitioner

demonstrate

a

cannot

meritorious

overcome

his

constitutional

his claim for a sentencing credit is denied in total,
Court

therefore

analysis addressing the

need

not

perform

additional

difference under Virginia law,

legal

if any,

between time spent confined in "jail" and time spent confined in
the

"Stafford Diversion Center."
VI.

Having

portions

adopts
R&R,

of

reviewed

the

modified

as

error"

set

all

herein.

Having

the R&R,

unobjected-to

forth above,

to facts and analysis

objected-to portions of
detail above,

"clear

detailed R&R,

the unobjected
as

for

CONCLUSION

set

considered

for the

reasons

this

forth
de

set

Court

in the

novo

all

forth in

this Court finds that Petitioner fails to satisfy

the legal standard necessary to overcome his procedural default.
The Court

therefore GRANTS Respondent's motion to dismiss,
59

and

DISMISSES Petitioner's amended § 2254 petition in its entirety.

Alternatively, to the extent this Court is permitted to squarely
address

the

merits

of

Petitioner's

reasons discussed above,

§

2254

claims,

for

the

Petitioner's claims are alternatively

DENIED on the merits.

Finding that Petitioner fails to make the requisite legal
showing

supporting

the

issuance

of

appealability,

this Court declines to

See

v.

Miller-El

Governing § 2254
App.

P. 22(b);

Cockrell,

537

Proceedings

28 U.S.C.

§ 2253(c).

certificate

of

issue such a certificate.

U.S.

in U.S.

a

322,

Dist.

335-36

Cts.

(2003);

11(a);

R.

Fed.

R.

Petitioner is ADVISED that,

because a certificate of appealability is denied by this Court,
he

may

seek

a

certificate

from

Appeals for the Fourth Circuit.
U.S.

Dist.

certificate

Cts.

of

States

If

appealability

should forward a
United

11(a).

the

R. Gov.

from

Granby Street, Norfolk,

Court,

the

intends

Court

appeal

United

States

Court

of

§ 2254 Proceedings for

Petitioner

written notice of

District

United

to

States

to

seek

a

of

Appeals,

he

the

Clerk of

the

Courthouse,

600

Virginia 23510, within thirty (30)

days

from the date of entry of this judgment.
The Clerk is DIRECTED to provide a copy of this Opinion and

Final Order to Respondent, and to mail a copy to the Petitioner.
It

is

so ORDERED.

60

?SVS^
Mark

S.

Davis

United States District Judge

Norfolk,

Virginia

July 31 , 2014

61