Richards v. Clarke
Filing
11
MEMORANDUM OPINION. See Opinion for complete details. Signed by District Judge Robert E. Payne on 07/17/2015. (ccol, )
E
p
IN THE UNITED
r
STATES DISTRICT COURT
JUL 1 7 2015
FOR THE EASTERN DISTRICT OF VIRGINIA
r\\
y
,J
Richmond Division
CLERK IJ S OiSlniCT COURT
'niCurvlOND. VA
MARK E.
RICHARDS,
Petitioner,
V.
Civil Action No.
HAROLD W. CLARKE,
3:14CV715
Director,
Respondent.
MEMORANDUM OPINION
Petitioner,
pro se,
Mark E.
§
The matter is
2254
(hereinafter,
before
the Court
pursuant to 28 U.S.C.
Governing
Section
this
Court
habeas petition.^
the
a Virginia inmate proceeding
filed this petition for a writ of habeas corpus pursuant
to 28 U.S.C.
Courts,
Richards,
action.
§
2254
636(b).
cases
conducts
a
"§ 2254
for a
Petition," ECF No.
Report
1) .
and Recommendation
Pursuant to Rule 4 of the Rules
in
the
United
preliminary
States
review
of
District
Richards's
The Magistrate Judge recommended dismissing
Richards
filed
objections.
For
the
reasons
that
^ According to Rule 4 of the Rules Governing Section 2254 cases;
The clerk must promptly forward the petition to a
judge under the court's assignment procedure, and the
judge must promptly examine it.
If i t plainly appears
from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district
court, the judge must dismiss the petition and direct
the clerk to notify the petitioner.
Rules Governing § 2254 Cases in U.S.
District Courts,
Rule 4.
follow
will
Richards's
Objections
will
be
overruled
and
the
action
be dismissed.
I.
The
Magistrate
BACKGROUND
Judge
made
the
following
findings
recommendations:
In his § 2254 Petition, Richards demands federal
habeas
relief
because
"the
Virginia
Parole
Board
violated his due process rights when the Board found
him not suitable for release on parole." (§ 2254 Pet.
2.)
For the reasons set forth below,
that
the
A.
action be
Procedural
i t is RECOMMENDED
DISMISSED.
History
and
Svunmary
of
Richards's
Claims
Richards
has
an
Richards v. Clarke,
*1 n.3, *2-4 (E.D.
extensive
No.
Va.
criminal
record.
See
3:12CV639, 2014 WL 693505, at
Feb. 21, 2014). In 2013 and
2014,
the
Virginia
Parole
Board
denied
Richards
release
on discretionary parole because of,
inter
alia: his "[e]xtensive criminal record"; his "prior
failure[s]
and/or convictions while under community
supervision indicate that [he is] unlikely to comply
with
conditions
indicates
a
of
serious
release";
disregard
for
Richards's
"record
the property rights
of others"; and, Richards's "record of institutional
infractions indicates a disregard for rules and that
[he is] not ready to conform to society."
(Mem. Supp.
§ 2254 Pet. Attach. D, at 1; see id. Attach. E.)
In
his
§
2254
Petition,
Richards
"claims
that
the
Virginia Parole Board violated his due process rights
when the Board found him not suitable for parole."
(§ 2254 Pet. 2.)
B.
Analysis
The Due Process Clause applies when government
action deprives an individual of a legitimate liberty
or property interest.
See Bd. of Regents of State
Colls, v. Roth, 408 U.S. 564, 569-70 (1972).
Thus,
the first step in analyzing a procedural due process
and
claim is to identify whether the alleged conduct
affects a protected liberty or property interest.
Beverati v. Smith, 120 F.3d 500, 502 (4th Cir. 1997)
(citations omitted).
Where government action impacts
a protected liberty interest, the second step is to
determine
"what
process
is
due"
under
the
circumstances.
Morrissey v. Brewer, 408 U.S. 471, 481
(1972)
(observing
that
"due
process
is
flexible . . . . not
all
situations
procedural
safeguards
call
procedure").
A
liberty
interest
for
the
calling
same
for
kind
of
may
arise
from
the
Constitution itself, or from state laws and policies.
Wilkinson v. Austin,
545 U.S.
209,
220-21
(2005).
"There is no constitutional or inherent right of a
convicted person to be conditionally released before
the expiration of a valid sentence."
Greenholtz v.
Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7
(1979).
"With no constitutional right to parole per
se, federal courts recognize due process rights in an
inmate only where the state has created a 'legitimate
claim of entitlement' to some aspect of parole." Vann
V. Angelone, 73 F.3d 519, 522 (4th Cir. 1996) (quoting
Gaston v. Taylor,
946 F.2d 340,
344
(4th Cir.
1991)).
The United States Court of Appeals for the Fourth
Circuit consistently has found the pertinent Virginia
statutes fail to create a protected liberty interest
in release on parole.
See Burnette v. Fahey, 687 F.3d
171, 181 (4th Cir. 2012) (citing Gaston v. Taylor, 946
F.2d 340, 344 (4th Cir. 1991); Vann v. Angelone, 73
F.3d 519, 522 (4th Cir. 1996)).
Virginia, however,
has
created
a
limited
liberty
interest
in
consideration
for
parole.
Burnette
v.
Fahey,
3:10CV70, 2010 WL 4279403, at *8 (E.D. Va. Oct. 25,
2010); Burnette, 687 F.3d at 181.
"*The question thus
becomes what procedures are required under the Due
Process
Clause
in
[considering]
an
inmate
for
discretionary release on parole.'"
Burnette, 2010 WL
4279403, at *8 (quoting Neal v. Fahey, No. 3:07cv374,
2008 WL 728892, at *2 (E.D. Va. Mar. 18, 2008)).
The
Fourth
Circuit
has
stated
that
the
Constitution requires only a very limited amount of
process
in
considering
an
inmate
for
parole.
Specifically,
"[a]t
most, . . .
parole
authorities
must furnish to the prisoner a
statement of its
reasons for denial of parole."
Burnette, 687 F.3d
at 181 (alteration and omission in original) (citation
omitted) (internal quotation marks omitted).
"So long
as the statement provides a valid ground for denying
parole, the federal courts cannot, under the guise of
due process, demand more from the state."
Burnette,
2010 WL 4279403, at *8 (citation omitted).
Moreover,
"where the denial of parole
. . .
rests
on one
constitutionally
valid
ground,
the
Board's
consideration of an allegedly invalid ground would not
violate
a
constitutional
right."
Bloodgood
v.
Garraqhty,
783
F.2d 470, 475
Zant V. Stephens,
Here,
with
a
(4th Cir.
862
1986)
(citing
(1983)).
the Virginia Parole Board provided Richards
statement
parole.
prior
462 U.S.
of
Richards's
failures
its
reasons
extensive
on
for
denying
record
criminal
community
him
and
supervision
provide
legitimates bases for the Virginia Parole Board to
deny Richards release on parole.
Bloodgood, 783 F.2d
at 475.
In comparable circumstances,
the Fourth
Circuit
has
"concluded
constitutionally
that
sufficient
the
parole
reasons
when
board
it
gave
informed
the prisoner that he was denied parole release because
of 'the seriousness of [his] crime' and his 'pattern
of criminal conduct.'"
Burnette, 2010 WL 4279403, at
*8 (alteration in original)
(quoting Bloodgood, 783
F. 2d at
472,
474).
Because Richards
has
received all
of the process that the Constitution requires, he
fails to state a basis for federal habeas corpus
relief.
Accordingly,
it
is
RECOMMENDED
that
Richards's §
(Report
2254
Petition BE DISMISSED.
and Recommendation
entered April
27,
2015
(alterations
in original).)
II.
STANDAKD OF REVIEW FOR REPORT AND RECOMMENDATION
"The magistrate makes only a recommendation to this court.
The
recommendation
responsibility
court."
1993)
to
Estrada
has
make
v.
(citing Mathews
a
no
final
Witkowski,
v.
Weber,
presumptive
weight,
determination
816
423
F.
remains
Supp.
U.S.
and
261,
408,
the
with
this
410
270-71
(D.S.C.
(1976)).
This Court "shall make a de novo determination of those portions
of the report or specified proposed findings or recommendations
to
which
filing
objection
of
district
is
objections
judge
to
made."
to
focus
a
28
U.S.C.
§
magistrate's
attention
on
636(b)(1).
report
those
enables
the
issues-factual
and
legal-that are at the heart of the parties' dispute."
Arn, 474 U.S. 140, 147
recommendation,
(1985).
"The
Thomas v.
When reviewing the magistrate's
this Court "may also receive further evidence."
28 U.S.C. § 636(b)(1).
III.
RICHARDS'S OBJECTIONS
Richards asserts:
The
whether
basis
he
for
received
Petitioner's
notice
of
objection
the
reason
is
not
for
the
denial of his discretionary parole but is that he did
not receive fair consideration for parole suitability
under Due Process of Law.
Virginia parole statutes
contemplate that Petitioner be conditionally released
if some evidence indicates he is not an unsuitable
risk to the public safety.
See Franklin v. Shields,
569 F.2d 789-90 (4th Cir. 1977).
(Objs.
2.)
Richards's
ignores
the
objection
controlling
is
utterly
authority
frivolous
recited
by
and
the
simply
Magistrate
Judge that reflects that he received all the process due to him
when the Virginia Parole Board provided him with a
its reasons for denying him parole.
F. 3d 171,
181
(4th Cir. 2012)
statement of
See Burnette v.
Fahey,
687
(quoting Franklin v. Shields,
569
F.2d 784, 801 (4th Cir.
will
be
overruled.
1978)
The
accepted and adopted.
(en banc)).
Report
and
Richards's objection
Recommendation
The action will be dismissed.
will
be
The Court
denies a certificate of appealability.
An appropriate
Final Order will accompany this Memorandum
Opinion.
/s/
Date:
O
/
in
Richmondf^ ViTginia
^
Kooert tj.
fayne
Senior United States District Judge
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