Shabazz v. Attorney General of the State of Virginia

Filing 25

MEMORANDUM OPINION. See for complete details. Signed by Magistrate Judge Roderick C. Young on 05/03/2016. Clerk mailed copy to pro se Petitioner. (nbrow)

(L

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
HASSAN SHABAZZ,

MAY -3 2016
Cl.ERK, U.S. DISTRICT COURT
RICHMOND, VA

Petitioner,

v.

Civil Action No. 3:14CV824

ATTORNEY GENERAL OF VIRGINIA,
Respondent.

MEMORANDUM OPINION
Petitioner, Hassan Shabazz, a Virginia prisoner proceeding pro se, submitted this petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (hereinafter, "§2254 Petition," ECF
No. I). Respondent moves to dismiss the § 2254 Petition, on the grounds that, inter alia, the

§ 2254 Petition is an unauthorized, successive petition. Shabazz has responded (ECF No. 22).
For the reasons stated below, the Motion to Dismiss (ECF No. 19) will be GRANTED. The

§ 2254 Petition will be DENIED, and the action will be DISMISSED for lack of jurisdiction.
A.

Successive § 2254 Petitions

The Antiterrorism and Effective Death Penalty Act of 1996 restricted the jurisdiction of
the district courts to hear second or successive applications for federal habeas corpus relief by
prisoners attacking the validity of their convictions and sentences by establishing a
"'gatekeeping' mechanism." Felker v. Turpin, 518 U.S. 651, 657 (1996). Specifically, "[b]efore
a second or successive application permitted by this section is filed in the district court, the
applicant shall move in the appropriate court of appeals for an order authorizing the district court
to consider the application." 28 U.S.C. § 2244(b)(3)(A).

B.

Shabazz's Present § 2254 Petition

By Report and Recommendation entered on March 24, 2015, the Magistrate Judge
recommended dismissing the instant§ 2254 Petition as an unauthorized, successive petition
because Shabazz had previously filed a § 2254 petition concerning his convictions for three
counts of robbery and three counts of use of a firearm in the commission of a robbery in the
Circuit Court for the County of Nottoway, Virginia. (ECF No. 2, at 1-2 (citing Shabazz v. True,
No. 3:04CV361 (E.D. Va. Dec. 7, 2004).) However, in his Objections, Shabazz claimed
Petitioner believes he made a mistake upon the preliminary part of the
federal petition for writ of habeas corpus by stating at No. 1 that the Name and
location of the court that entered the judgment he was challenging was Nottoway
and that the convictions of which he is challenging are those of Robbery and Use
of a firearm in the commission of Robbery. This is not correct.
(Objs. 1-2, ECF No. 3.) He further explained ''that though it is true that petitioner previously
filed a petition concerning his convictions for robbery and use of a firearm, the present petition is
not challenging his convictions which occurred in the county of Nottoway, rather he is
challenging [the] constitutional violations which have occurred in the VDOC during his
incarceration, more specifically at his annual review dated for April 4, 2014." (Id. (emphasis
omitted).) Shabazz explained that he "is challenging a violation [ofj Article I Section 10, and the
14th Amendment of the United States Constitution which occurred April 4, 2014, and proceeds to
occur every month when he is awarded good time." (Id at 2.) The Court reviewed the
attachment to his § 2254 Petition and, because Shabazz indicated that he challenged his good
conduct allowance review on April 4, 2014 on contract and due process grounds, out of an
abundance of caution, the Court vacated the Report and Recommendation and continued to
process the action. (ECF No. 4.)

2

In his § 2254 Petition, Shabazz challenges "constitutional violations committed against
him at his annual review which took place on April 14, 2014." (§ 2254 Pet. 14.) 1 Shabazz
argues that he "was convicted on September 8, 1999 and was committed into the Department of
Corrections under Virginia Code 53.1-202.2 (Earned Sentence Credit- ESC)." (Id) Shabazz
contends that, since that time, he has been earning earned sentence credit at the wrong rate and
that he should be entitled to earn sentence credit under "Virginia Code§ 53.1-199 (Good
Conduct Allowance- GCA)," which is applicable to certain inmates convicted on or after July 1,
1981. (Id at 15.) Shabazz argues that even though he has earned credit under the ESC system
since 1999, "[e]very year at an 'Annual Review' the application of this law is revisited and
applied to petitioner for another year." (Id at 14.) As explained below, Shabazz has already
raised a similar challenge by federal habeas.

C.

Shabazz's Prior§ 2254 Petition

In 2003, Shabazz filed a § 2254 petition wherein he argued that "Respondent has denied
him due process and equal protection of the laws by failing to place him in the most favorable
system for receiving credit against his sentence while he was incarcerated." Shabazz v. Braxton,
No. 3:03cvl 77, at 1 (E.D. Va. Aug. 25, 2003) (ECF No. 9). By Memorandum Opinion and
Order entered on August 25, 2003, the Court denied Shabazz's § 2254 Petition. See id at 4.

D.

Shabazz's § 2254 Petition Is an Unauthorized, Successive Petition

"Although [the] AEDPA does not set forth what constitutes a 'second or successive'
application, [courts have concluded] that 'a later petition is successive when it ... raises a claim
challenging the petitioner's conviction or sentence that was or could have been raised in an
earlier petition .... "' Crone v. Cockrell, 324 F.3d 833, 836-37 (5th Cir. 2003) (quoting In re
1

The Court employs the pagination assigned by the CM/ECF docketing system for citations to
Shabazz's § 2254 Petition. The Court omits the emphasis in the quotations from Shabazz's
submissions.
3

Cain, 137 F.3d 234, 235 (5th Cir. 1998)). Accordingly, when "a prisoner knows 'all of the facts
necessary to raise his [attack on the execution of his sentence] before ... fil [ing] his initial
federal petition,' such a claim is successive and subject to the limits imposed by section
2244(b)," when such an attack is raised in a subsequent federal petition. Moody v. Maynard, 105
F. App'x 458, 465 (4th Cir. 2004) (alterations in original) (quoting Crone, 324 F.3d at 837).
That is the case here. Shabazz clearly had all the facts necessary to bring his current challenge to
the execution of his sentence at the time he filed his first § 2254 petition, and indeed, he filed
such an attack on his earned sentence credit rate. Because Shabazz has not obtained
authorization from the United States Court of Appeals for the Fourth Circuit to file a successive

§ 2254 petition, this Court lacks jurisdiction to entertain the present§ 2254 Petition.
Accordingly, the Motion to Dismiss (ECF No. 19) will be GRANTED. The§ 2254
2

Petition will be DENIED, and the action will be DISMISSED for lack of jurisdiction. The
Court will deny a certificate of appealability. 3
An appropriate Final Order shall issue.

Roderick C. Young
United States Magistrate
Date: May 3_, 2016
Richmond, Virginia

2

Moreover, for the reasons previously identified by the Court, Shabazz's underlying claims also
lack merit. Shabazz v. Braxton, No. 3:03cvl 77, at 1-4 (E.D. Va. Aug. 25, 2003) (ECF No. 9).

3

An appeal may not be taken from the final order in a § 2254 proceeding unless a judge issues a
certificate of appealability ("COA''). 28 U.S.C. § 2253(c)(l)(A). A COA will not issue unless a
prisoner makes "a substantial showing of the denial of a constitutional right." 28 U.S.C.
§ 2253(c)(2). This requirement is satisfied only when "reasonable jurists could debate whether
(or, for that matter, agree that) the petition should have been resolved in a different manner or
that the issues presented were 'adequate to deserve encouragement to proceed further.'" Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4
(1983)). Shabazz fails to meet this standard.
4