Yo v. Clark

Filing 28

MEMORANDUM OPINION. See Opinion for complete details. Signed by District Judge M. Hannah Lauck on 08/10/2017. (ccol, )

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

AUG I 0 2017

YO, f/k/a Mario L. Ballard,

CLERK. U.S. D1!STn1CT COURl
RICHMOND, VA

Petitioner,

v.

Civil Action No. 3:16CV366

HAROLD W. CLARKE,
Respondent.

MEMORANDUM OPINION
Yo, a Virginia state prisoner proceeding prose, brings this petition pursuant to 28 U.S.C.

§ 2254 ("§ 2254 Petition," ECF No. 1) challenging his state collateral proceedings as well as his
placement in the Sex Offender Residential Treatment ("S.O.R.T") program during his
confinement. On June 21, 2017, the Magistrate Judge issued a Report and Recommendation that
recommended denying Yo's § 2254 Petition as well as Yo's Motion for Discovery. (ECF
No. 25.) Yo has filed objections. (ECF No. 26.) Yo has also filed an Affidavit with respect to
his objections ("Yo Affidavit," ECF No. 27). For the reasons that follow, Yo's objections will
be OVERRULED, and Yo's § 2254 Petition and Motion for Discovery will be DENIED.

I.

BACKGROUND

The Magistrate Judge made the following findings and recommendations:

A.

Relevant Procedural History and Yo's Claims

Yo was convicted in the Circuit Court of Nottoway County, Virginia
("Circuit Court") of one count of malicious wounding. (ECF No. 14-1, at 1-2.) 1
On January 8, 2010, the Circuit Court entered judgment and sentenced Yo to ten
1

Yo was convicted of rape in 1994 in the Circuit Court for the City of Newport
News, Virginia. See Ballard v. Cuccinel/i, No. 3:10CV524, 2011 WL 1827866,
at *1 (E.D. Va. May 12, 2011). On June 12, 2007, the Circuit Court for the City
of Newport News "determined that [Yo] was a sexually violent predator and
ordered [Yo] to be civilly committed." Id. The Court discusses this conviction
further in its analysis of Yo's second claim for relief.

years of incarceration. (Id at 2.) The Court of Appeals of Virginia subsequently
refused Yo's petition for appeal. (ECF No. 14-8, at 1.)
On October 3, 2013, Yo filed a § 2254 petition in this Court, challenging
his malicious wounding conviction. (See ECF No. 14-11, at 1-26.) By
Memorandum Opinion and Order entered on July l, 2014, the Court denied Yo's
petition. Yo v. Lester, No. 3:13CV701, 2014 WL 2968069, at *6 (E.D. Va. July 1,
2014). The United States Court of Appeals for the Fourth Circuit denied a
certificate of appeal ability and dismissed Yo' s appeal. Yo v. Lester, 614 F. A pp 'x
678, 679 (4th Cir. 2015). The United States Supreme Court denied Yo's petition
for a writ of certiorari. Yo v. Ratl(ffe-Walker, 136 S. Ct. 1176 (2016).
On January 27, 2016, Yo filed a petition for a writ of habeas corpus in the
Supreme Court of Virginia. (ECF No. 14-14, at 1.) Yo raised the following
claims for relief:
a.

Ex Post Facto Clause violation for the state and federal
Constitution because the Virginia Department of
Corrections did an administrative transfer of the Petitioner
due to a new policy it had enacted after Petitioner's
sentence, requiring him to be placed at Greensville
Correctional Center to participate in its sex offenders
program even though he is not incarcerated for a sex crime,
and because the policy initially stated that the offender had
to be incarcerated for a sex crime.

b.

Due Process Clause violation for the state and tederal
Constitution because the Petitioner was at a lower level
facility, where he had earned a right to be by way of his
good behavior.

c.

Special law clause violation for the state and federal
Constitution because the respondent has acted on a whim
simply because Petitioner has a sex crime on his record, as
a result taking him away from his numerous privileges.

d.

Slavery abolished clause violation because the respondent
kidnapped Petitioner after knowing that he was civilly
committed since 2008, meaning once Petitioner is released
he will be remanded to the Virginia Center for Behavior
Rehabilitation.

e.

Cruel and Unusual Punishment clause violation [of] the
state and federal [Constitution] because Virginia has
applied four penalties to Petitioner for one prior offense
and they are: civil commitment, sex offender registration,
and notification, and S.0.R.T., which has increased his
punishment.

2

(Id at 4-5.)2 On May 10, 2016, the Supreme Court of Virginia dismissed Yo's
petition, concluding that his "claims, which challenge the conditions of his
confinement, are barred because the writ is not available to secure a judicial
detennination of any question which, even if determined in petitioner's favor,
could not affect the lawfulness of his custody and detention." (ECF No. 14-15, at
1 (citation omitted).)
On June 9, 2016, Yo filed the instant § 2254 Petition in this Court. 3
(§ 2254 Pet. 14.) In his § 2254 Petition, Yo raises the following claims for relief:
Claim One:

"Suspension of habeas corpus violation[.] On May
10, 2016, the Supreme Court of Virginia dismissed
the Petitioner's writ of habeas corpus without a
hearing. Likewise, it neither issued a show cause
order for the above said writ." (Id at 5.)

Claim Two:

"Peonage or slavery abolished clause violation[.]
The Respondent has taken the Petitioner from
Lunenburg Correctional Center and placed him into
the custody of Greensville Correctional Center,
forcing him to partake in its Sex Offender
Residential
Treatment
(S.O.R.T.)
program.
However, Petitioner does not have a current sex
offense requiring him to be at GRCC." (Id. at 6-7.)

Respondent has moved to dismiss, arguing that the instant § 2254 petition
is successive, 4 that Claim One is procedurally defaulted, 5 and that Yo's claims
2

The Court utilizes the pagination assigned to Yo's submissions by the CM/ECF
docketing system. The Court corrects the capitalization, spelling, and punctuation
in quotations from Yo's submissions.
3

This is the date that Yo states he placed his§ 2254 Petition in the prison mailing
system for mailing to this Court. The Court deems this the filed date. See
Houston v. lack, 487 U.S. 266, 276 (1988).
4

Respondent argues that Yo's § 2254 Petition is an unauthorized second or
successive petition because Yo previously filed a§ 2254 petition challenging his
malicious wounding conviction. (Br. Supp. Mot. to Dismiss 7.) In the instant
§ 2254 Petition, Yo refers to his conviction from Nottoway County, which is
where he was convicted of malicious wounding.
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

3

lack merit. (Br. Supp. Mot. Dismiss 7-11, ECF No. 14.) Yo has filed a
Response. (ECF No. 18.) Yo has also filed a Motion for Discovery. (ECF
No. 19.) By Memorandum Order entered on April 25, 2017, the Court directed

the parties to submit further briefing regarding Yo's contention that he lost ninety
days of good conduct time because of his removal from the S.O.R.T. program.
(ECF No. 21, at 2.) Both parties have responded. (ECF Nos. 23, 24.) As
explained below, it is RECOMMENDED that Yo's claims be DISMISSED and
that Yo's Motion for Discovery be DENIED.
B.

Analysis

1.

Applicable Constraints upon Habeas Review

In order to obtain federal habeas relief, at a minimum, a petitioner must
demonstrate that he is "in custody in violation of the Constitution or laws or

treaties of the United States." 28 U.S.C. § 2254(a). The Antiterrorism and
Effective Death Penalty Act ("AEDPA") of 1996 further circumscribed this

Court's authority to grant relief by way of a writ of habeas corpus. Specifically,
"[s]tate court factual determinations are presumed to be correct and may be
rebutted only by clear and convincing evidence." Gray v. Branker, 529 F.3d 220,
228 (4th Cir. 2008) (citing 28 U.S.C. § 2254(e)(1)). Additionally, under 28
U.S.C. § 2254(d), a federal court may not grant a writ of habeas corpus based on
any claim that was adjudicated on the merits in state court unless the adjudicated
claim:

(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the
State court proceeding.

28 U.S.C. § 2254(d). The Supreme Court has emphasized that the question "is
not whether a federal court believes the state court's detemiination was incorrect

court to consider the application." 28 U.S.C. § 2244(b)(3)(A). Here, however,
Yo does not appear to be challenging his conviction and sentence for malicious
wounding. Instead, he raises challenges to his state collateral proceedings, as well

as the fact that he has been forced to participate in the S.O.R.T. program during
his incarceration. Respondent has not discussed how the nature of Yo's claims

impact whether or not his § 2254 Petition is successive. In light of this omission,
the Court declines to find that Yo's § 2254 Petition is an unauthorized second or
successive petition.

^Although Respondent's procedural default argument with respect to Claim One
is viable, the Court chooses to recommend dismissal of Claim One because it does
not provide any basis for federal habeas relief

but whether that determination was unreasonable—a substantially higher
threshold." Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams v
Taylor, 529 U.S. 362, 410 (2000)).
2.

Claim One

Yo's first claim does not provide any basis for federal habeas relief

"[C]laims of error occurring in a state post-conviction proceeding cannot serve as
a basis for federal habeas corpus relief" Bryant v. Maryland, 848 F.2d 492, 493
(4th Cir. 1988) (citing cases). Yo's first claim provides no basis for federal
habeas reliefbecause Yo is detained as a result of the underlying state conviction,
not the state collateral proceeding. See Lawrence v. Branker, 517 F.3d 700, 717
(4th Cir. 2008).

Accordingly, it is RECOMMENDED that Claim One be

DISMISSED.
3.

Claim Two

In Claim Two, Yo states:

Peonage or slavery abolished clause violation[.] The respondent
has taken the Petitioner from Lunenburg Correctional Center and
placed him into the custody of Greensville Correctional Center,
forcing him to partake in its Sex Offender Residential Treatment
(S.O.R.T.) program. However, Petitioner does not have a current

sex offense requiring him to be at GRCC.
(§ 2254 Pet. 6-7.)

As relief, Yo requests "that the Court declare that the

Respondent violated the Petitioner's rights by forcing him to participate in its
S.O.R.T. program and any other relief to which Petitioner may be entitled." {Id.
at 14.)

a.

Peonage or Slavery Allegation

Yo first contends that his placement in the S.O.R.T. program is akin to
"[pjeonage or slavery." (§ 2254 Pet. 6.) The Court construes Yo's allegation to
assert that his placement in the S.O.R.T. program violated the Thirteenth
Amendment of the United States Constitution, which provides that "[n]either
slavery nor involuntary servitude, except as a punishment for crime whereof the

party shall have been duly convicted, shall exist within the United States, or any
place subject to their jurisdiction." U.S. Const, amend. Xlll. "[T]he term
'involuntary servitude' necessarily means a condition of servitude in which the
victim is forced to work for the defendant by the use or threat of physical restraint
or physical injury, or by the use of threat or coercion through law or the legal
process." United States v. Kozminski, 487 U.S. 931, 952 (1988). Nevertheless,
"[t]he Thirteenth Amendment permits involuntary servitude without pay as
punishment after conviction of an offense, even when the prisoner is not explicitly
sentenced to hard labor." Smith v. Dretke, 157 F. App'x 747, 748 (5th Cir. 2005)

(citations omitted); see Murray v. Miss. Dep 7 of Corr., 911 F.2d 1167, 1168 (5th
Cir. 1990) ("Compelling an inmate to work without pay is not unconstitutional.").
Yo does not explain, and the Court does not discern, how, by being placed in
S.O.R.T., he has been forced to work without receiving pay. Accordingly, Yo's
argument that his placement in the S.O.R.T. program violated the Thirteenth
Amendment lacks merit.

b.

Ex Post Facto Allegation

In his Response, Yo contends that his placement in the S.O.R.T. program
also violates the Constitution's Ex Post Facto Clause because the S.O.R.T.

program did not exist when he was convicted of a sex offense two decades ago.
(Resp. l,ECFNo. 18.)

Article I, Section 10 of the United States Constitution prohibits the passing
of any "ex post facto Law." U.S. Const, art. I, § 10. The Supreme Court has
"held that the [Ex Post Facto] Clause is aimed at laws that 'retroactively alter the
definition of crimes or increase the punishment for criminal acts.'" Cal. Dep'l of
Corr. V. Morales, 514 U.S. 499, 504 (1995) (quoting Collins v. Yoimgbhod, 497
U.S. 37, 43 (1990)). This prohibition applies to administrative regulations that
have been promulgated pursuant to statutory authority. See Garner v. Jones, 529
U.S. 244, 250 (2000). "The ex post facto inquiry has two prongs: (1) whether
there was a change in the law or policy which has been given retrospective effect,
and (2) whether the offender was disadvantaged by the change." Richardson v.
Pa. Bd ofProh. and Parole, 423 F.3d 282, 287-88 (3d Cir. 2005) (citing Weaver
V. Graham, 450 U.S. 24, 29 (1981)).

Here, Yo contends that his "sentence has increased because he is being
forced by the Respondent to participate in its [S.O.R.T.] program." (Resp. 1.) Yo

argues that his "sex offense conviction is over twenty (20) years old thus [the]
S.O.R.T. program applied to him violates the Ex Post Facto Clause . . . because

[S.O.R.T.] did not exist at the time of his conviction." (Pet'r's Supp. Resp. 4,
ECF No. 24.) However, an inmate's placement in treatment programs such as
S.O.R.T. and involuntary civil commitment following that inmate's classification
as a sex offender does not violate the Ex Post Facto Clause, even if the treatment
program is based upon conduct which occurred prior to the enactment of the

program. See Kansas v. Hendricks, 521 U.S. 346, 370-71 (1997) (concluding that
Kansas's Sexually Violent Predator Act did not violate the Ex Post Facto Clause);
Neal V. Shimoda, 131 F.3d 818, 824-27 (9th Cir. 1997) (rejecting inmates' claim
that placement in sex offender treatment program based upon acts they committed
prior to the program's establishment violated the Ex Post Facto Clause). Yo has
not alleged, and the Court cannot discern, how his sentence increased simply by
his placement in the S.O.R.T. program. See Fox v. Craven, CV05~494-S-LMB,
2007 \VL 2782071, at *6-7 (D. Idaho Sept. 21, 2007) (rejecting claim that
inmate's placement in sex offender treatment retroactively lengthened his
sentence because he could not be paroled until he completed the program as
irunate had no vested right in a particular parole date). For these reasons, Yo's Ex
Post Facto argument is also meritless.

c.

Loss of Good Time Credits and Placement in S.O.R.T.

Respondent contends that Claim Two does not state a claim for relief

under § 2254 because Yo "only raises this conclusory statement contesting the
conditions of his confinement; he does not argue that he is in custody in violation
of the United States Constitution." {Mem. Supp. Mot. Dismiss 11, ECF No. 14.)
In response, Yo contends that he has properly brought his claim under § 2254
because, "should he leave the S.O.R.T. program for reasons, such as signing out
or having been removed for disciplinary action, he would then lose his good
conduct allowance as for [sic] his penalty." (Resp. 3.) Moreover, in his response
to the Court's August 4, 2016 Memorandum Order directing Yo to show cause as
to why the action should not proceed under 42 U.S.C. § 1983, Yo stated that he

"ha[s] had ninety (90) days of good conduct allowance taken from [him] because
[he has] been removed from the S.O.R.T
program." (ECF No. 7, at 1.)
"[T]he essence of habeas corpus is an attack by a person in custody upon
the legality of that custody, and ... the traditional function of the writ is to secure

release from illegal custody." Preiser v. Rodriguez, 411 U.S. 475, 484 (1973).
The United States Court of Appeals for the Fourth Circuit has concluded that a

challenge to the loss of vested good time credits "sounds in habeas." Royster v.
Polk, 299 F. App'x 250, 251 (4th Cir. 2008) (citing Preiser, 411 U.S. at 489;
Plyler v. Moore, 129 F.3d 728, 733 (4th Cir. 1997)).
Here, the record reflects that Yo has not lost any good time credits as a
result of any failure to participate in the S.O.R.T. program. Yo entered the

custody of the Virginia Department of Corrections ("VDOC") on July 8, 2010.
(Resp't's Supp. Resp. Attach. 1 ("Brown Aff") ^ 6, ECF No. 23-1.) At that time,

Yo was assigned to Earned Sentence Credit ("ESC") Level 1, thereby earning 4.5
days of ESC for every thirty (30) days served. {Id.
9, 11.) His projected good
time release date was calculated to be March 14, 2018. {Id. ^11.) In 2016, Yo
was convicted of a disciplinary charge; however, the institutional conviction was

later expunged from his record. {Id. ^ 12.) On August 15, 2016, Yo was assigned
to ESC Level 4, thereby earning no ESC. {Id.
9, 13.) However, he was
reassigned to ESC Level 1 on August 16, 2016. {Id. ^13.) "For purposes of the
calculation of [Yo's] projected good time release date, being in class Level 4 for

one day had absolutely no impact on his anticipated release date. When [Yo's]
conviction was expunged, his anticipated good time release date was recalculated
to March 14,2018." {Id. (citations omitted).)
In an unsworn Supplemental Response, Yo contends that "he was

convicted for having been removed from the S.O.R.T. program, and that his
earned ninety (90) days [good time credit] was, indeed, taken as a resuh of it
...(Pet'r's Supp. Resp. 4.) Even if Yo did lose ESC as a result of his removal

from the S.O.R.T. program, the record conclusively establishes that any lost ESC
was returned to him as of August 16, 2016, when Yo's institutional conviction

was expunged and he was reassigned to ESC Level 1.

Accordingly, Yo's

challenge regarding the loss of ESC is meritless.
Throughout his pleadings, Yo also challenges his placement into the

S.O.R.T. program. Yo seeks a declaration that his placement in the S.O.R.T.
program was unconstitutional because he is not currently serving a sentence for a

sex offense. (§ 2254 Pel. 14.) Although Yo has already served his sentence for
his rape conviction and is not currently serving a sentence for a sex offense,
success on this challenge would not result in Yo's early release from custody.
Instead, Yo would only be relieved of participating in the S.O.R.T. program.
"A civil rights action under § 1983 is the appropriate vehicle to challenge
the conditions of confinement, but not the fact or length of the confinement."
Brown v. Johnson, 169 F. App'x 155, 156 (4th Cir. 2006) (citing Preiser, 411
U.S. at 498-99). To the extent that Yo challenges his placement in the S.O.R.T.
program, he is challenging a condition of his current confinement. Thus, his
claim is not cognizable under § 2254 and instead must be raised in an action

brought under 42 U.S.C. § 1983.^ See Neal, 131 F.3d at 823-24 (concluding that
inmates' challenge to being labelled as sex offenders and being required to
complete sex offender treatment was properly brought under § 1983); Mackey v.
Archulela, No. 14-cv-Ol 162-GPG, 2014 WL 6461399, at *3 (D. Colo. Nov. 18,
2014) (citation omitted) (concluding that challenge to administration of sex
offender treatment was not cognizable under 28 U.S.C. § 2241 and was instead
"appropriate in a civil rights action pursuant to § 1983"); Mittelstadt v. Wall,

No. 14-cv-423-jdp, 2014 WL 5494169, at *2 (W.D. Wis. Oct. 30, 2014) (noting
that claim challenging placement in sex offender treatment was not cognizable
under § 2254 and was "properly brought in a civil rights action under 42 U.S.C.
§ 1983"); Ponicki v. Minnesota, No. 10-cv^527 (SRN/TNL), 2013 WL

2483068, at *9 (D. Minn. June 10, 2013) (citations omitted) (concluding that
inmate's sex offender treatment "claim challenges a condition of his confinement,
not the fact or duration of his confinement"); Sledge v. Thaler, No. 3;10-CV0456-P (BH) ECF, 2010 WL 2817044, at *6 (N.D. Tex. June 28, 2010) (citations

omitted) (concluding that petitioner's claim that he was unconstitutionally
required to participate in sex offender treatment while on parole was not
cognizable under § 2254 because "success in his challenge[] to th[is]
requirement[] would not result in an earlier release from custody"), R&R adopted
hyim WL 2817040 (N.D. Tex. July 14, 2010).
In sum, it is RECOMMENDED that Claim Two be DISMISSED to the

extent that Yo asserts challenges regarding violations of the Thirteenth
Amendment and the Ex Post Facto Clause and the loss of ESC. To the extent that

Yo asserts a challenge to his placement in the S.O.R.T. program, it is
RECOMMENDED that Claim Two be DISMISSED WITHOUT PREJUDICE to

Yo's right to raise his challenge in an action brought pursuant to 42 U.S.C.
§ 1983.

^ In his Supplemental Response, Yo requests relief in the form of $400,000.00 in
punitive damages and $350,000.00 in compensatory damages. (Pet'r's Supp.
Resp. 6.) However, habeas corpus "is not an appropriate or available federal
remedy" for damages claims. Preiser, 411 U.S. at 494; McKinney-Bey v. HawkSawyer, 69 F. App'x 113, 113-14 (4th Cir. 2003) (noting that "an action for
monetary damages is properly pursued by way of a civil rights action").
8

C.

Yo's Motion for Discovery

In his Motion for Discovery, Yo requests that Respondent "send him the
names of all the inmates at [Lunenburg Correctional Center] who are currently
incarcerated for a sex crime who also ha[ve] less than thirty (30) months before
being released." (EOF No. 19, at 1.) He also requests that Respondent provide
the S.O.R.T. "policy from when it was first enacted even all of its revised

versions." {Id. at 2.) Rule 6(a) of the Rules Governing Section 2254 Cases
provides that "[a] judge may, for good cause, authorize a party to conduct

discovery under the Federal Rules of Civil Procedure . . . ." Rules Governing
§ 2254 Cases R. 6(a). Good cause for discovery under Rule 6(a) is shown "where
specific allegations before the court show reason to believe that the petitioner
may, if the facts are fully developed, be able to demonstrate that he is[] entitled to
relief" Bracy v. Gramley, 520 U.S. 899, 909 (1997) (citation omitted). The
Court fails to discern, and Yo fails to explain, how the purported discovery he

seeks is necessary for the resolution of this action. Yo fails to demonstrate good
cause to warrant discovery. Accordingly, it is RECOMMENDED that his Motion
for Discovery (ECF No. 19) be DENIED.
D.

Conclusion

For the foregoing reasons, it is RECOMMENDED that the Court GRANT
Respondent's Motion to Dismiss (ECF No. 12) and DISMISS Yo's claims. It is

further RECOMMENDED that Yo's § 2254 Petition be DENIED, Yo's Motion
for Discovery (ECF No. 19) be DENIED, and the action be DISMISSED.
(Report and Recommendation 1-12 (alterations and omissions in original).)
II.

STANDARD OF REVIEW

"The magistrate [judge] makes only a recommendation to this court. The

recommendation has no presumptive weight, and the responsibility to make a final determination

remains with this court." Eslrado v. Witkowski, 816 F. Supp. 408, 410 (D.S.C. 1993) (citing
Mathews v. Weber, 423 U.S. 261, 270-71 (1976)). This Court "shall make a de novo

detennination of those portions of the report or specified proposed findings or recommendations

to which objection is made." 28 U.S.C. § 636(b)(1). "The filing of objections to a magistrate's
report enables the districtjudge to focus attention on those issues—factual and legal—that are at
the heart of the parties' dispute." Thomas v. Arn, 474 U.S. 140, 147 (1985). In the absence of a
specific written objection, this Court may adopt a magistratejudge's recommendation without
9

conducting a de novo review. See Diamond v. Colonial Life &Accident Ins. Co., 416 F.3d 310,
316 (4th Cir. 2005).
III.

VP'S OBJECTIONS

Yo raises four objections to the Magistrate Judge's Report and Recommendation. (Objs.
2-4.) At the outset, the Court notes that it is difficult to discern exactly whichconclusion of the

Magistrate Judge Yo intends to dispute through each objection. Cf. Beaudett v. City ofHampton,
775 F.2d 1274,1278 (4th Cir. 1985) (explaining that "[d]istrict judges are not mind readers" and
are"not require[d]... to conjure up questions never squarely presented to them"). Nevertheless,
the Court considers each objection below.

Yo's first objection is that "the magistrate was in favor of Clarke's having given back the
good time credits; however, the magistrate should have seen the date the [Earned Sentence

Credit ("ESC")] was given back, meaning after Yo's civil suit was filed. Clearly, the magistrate

has been undermined." (Objs. l.f In his Affidavit, Yo states that he "believe[s] the U.S.
Magistrate Judge here in thematter was duped into recommending relieffor my claims because

the Affidavit for the Respondent was not specific with the truth." (Yo Aff. 1} 1.) Yo "beiieve[s]
that [his] charge was dismissed after the Respondent received the Court's Order of September
16,2016, requiring him to respond to [Yo's] civil action as a means to cover up the abuse that
[Yo] was treated with." {Id. H4.)

With respect to Yo's ESC, the Magistrate Judge stated:

Even if Yo did lose ESC as a result of his removal from the S.O.R.T. program, the
record conclusively establishes that any lost ESC was returned to him as of

August 16, 2016, when Yo's institutional conviction was expunged and he was
reassigned to ESC Level 1. Accordingly, Yo's challenge regarding the loss of
ESC is meritless.

' The Court utilizes the pagination assigned to Yo's objections by the CM/ECF docketing
system. The Court corrects the capitalization in quotations from Yo's objections.
10

(Report and Recommendation 9.) Yo does not explain, and the Court does not discern, how the

fact that Yo's ESC was restored after Yo filed his §2254 Petition has any bearing on this
conclusion. Accordingly, Yo's first objection will be OVERRULED.

Yo's second and third objections both concern Yo's placement in the S.O.R.T. program.
As his second objection, Yo contends that he "filed amotion to discover to prove to the Court

how he was mistreated by way ofhim being selected by Clarke to participate in S.O.R.T.
meaning Yo was forced to partake in S.O.R.T. above inmates who currently are incarcerated

with sex crimes." (Objs. 3.) As his third objection, Yo argues that "the S.O.R.T. program is not
determined by any court to be a civil remedy such as the civil commitment for sex offenders as

well as the Sex Offender Registration and Notification, having alegitimate governmental
scheme." {Id.)

With respect to Yo's challenge to his placement in S.O.R.T., the Magistrate Judge stated:
Yo seeks a declaration that his placement in the S.O.R.T. program was
unconstitutional because he is not currently serving a sentence for a sex offense.

(§ 2254 Pet. 14.) Although Yo has already served his sentence for his rape

conviction and is not currently serving a sentence for a sex offense, success on
this challenge would not result in Yo's early release fi-om custody. Instead, Yo
would only be relieved ofparticipating in the S.O.R.T. program.

"A civil rights action under § 1983 is the appropriate vehicle to challenge

the conditions of confinement, but not the fact or length of the confinement."
Brown v. Johnson, 169 F. App'x 155, 156 (4th Cir. 2006) (citing Preiser, 411
U.S. at 498-99). To the extent that Yo challenges his placement in the S.O.R.T.
program, he is challenging a condition of his current confinement. Thus, his
claim is not cognizable under § 2254 and instead must be raised in an action
brought under 42 U.S.C. § 1983.

(Report and Recommendation 9-10.) The Magistrate Judge recommended that Yo's challenge
to his placement in S.O.R.T. be dismissed without prejudice to Yo's right to raise that challenge
in an action brought pursuant to 42 U.S.C. §1983. {Id at 11.) In his Affidavit, Yo avers that he

did not have an opportunity to review the cases upon which the Magistrate Judge relied in

making this recommendation because he "ha[s] limited access to the law library." (Yo Aff. T] 5
11

(capitalization corrected).) Nevertheless, Yo fails to identify, and the Court fails to discern, any
error in the Magistrate Judge's conclusion. Accordingly, Yo's second and third objections will
be OVERRULED.

As his fourth objection, Yo states:

In conclusion, originally Yo sought review for his illegal confinement to
S.O.R.T.; however, Yo believes that a motion is civil in nature and under Title 28
U.S.C. §§ 2201 and 2202 he also believes that this Court has jurisdiction to award

relief, which is his reason for filing the Petitioner's Supplemental Pleading

Regard Motion for Declaratory Judgment. And that is why he objects further to
the Report and Recommendation.

(Objs. 4(emphasis omitted).) In his Affidavit, Yo avers that "[t]o the best of[his] knowledge,
[he has] claimed that Clarke has violated [his] rights and that under Title 28 U.S.C. §§ 2254,

2201 [®], and 2202[^] this Court has the authority to grant the reliefthat [he has] sought." (Yo
Aff 17(spelling corrected).) Yo's objection, however, fails to "direct the court to aspecific
error in the magistrate's proposed findings and recommendations." Orpiam v. Johnson, 687

' 28 U.S.C. § 2201 provides that:

(a) In a case ofactual controversy within its jurisdiction, except with respect to
Federal taxes other than actions brought under section 7428 of the Internal

Revenue Code of 1986, a proceeding under section 505 or 1146 oftitle 11, or in
any civil action involving an antidumping or countervailing duty proceeding
regarding a class or kind ofmerchandise ofa free trade area country (as defined in
section 516A(f)(10) of the Tariff Act of 1930), as determined by the
administering authority, any court of the United States, upon the filing of an
appropriate pleading, may declare the rights and other legal relations of any
interested party seeking such declaration, whether or not further relief is or could
lie sought. Any such declaration shall have the force and effect of a final
judgment or decree and shall be reviewable as such.
28 U.S.C. § 2201(a).

^"Further necessary or proper relief based on adeclaratory judgment or decree may be granted,

after reasonable notice and hearing, against any adverse party whose rights have been determined
by such judgment." 28 U.S.C. § 2202.

12

F.2d 44,47 (4th Cir. 1982) (citations omitted).'" Accordingly, Yo's fourth objection will be
OVERRULED.
IV.

CONCLUSTON

Yo's objections (ECF No. 26) will be OVERRULED. The Report and Recommendation

(ECF No. 25) will be ACCEPTED and ADOPTED. The Motion to Dismiss (ECF No. 12) will

be GRANTED. Yo's Motion for Discovery (ECF No. 19) and his §2254 Petition (ECF No. 1)
will be DENIED. Yo's claims and the action will be DISMISSED.

An appeal may not be taken from the final order in a §2254 proceeding unless ajudge
issues acertificate ofappealability ("COA"). 28 U.S.C. §2253(c)(1)(A). ACOA will not issue

unless aprisoner makes "a substantial showing ofthe denial ofaconstitutional right." 28 U.S.C.
§2253(c)(2). Apetitioner satisfies this requirement only when "reasonable jurists could debate
whether (or, forthat matter, agree that) the petition should have been resolved in a different

manner orthat 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)). Yo fails to meet this standard. Acertificate ofappealability will therefore
be DENIED.

An appropriate Order will accompany this Memorandum Opinion.

Da.e:

AUG 1 0 2017

Richmond, Virginia

10

To the extent Yo objects to the conclusion that § 1983 is the appropriate vehicle for pursuing

his claim regarding his placement in S.O.R.T., this objection lacks merit for the reasons set forth
by the Magistrate Judge in the Report and Recommendation.
13