Loiseau v. Clarke

Filing 13

MEMORANDUM OPINION. READ OPINION for complete details. Signed by District Judge Robert E. Payne on 10/25/2017. Copy mailed to Petitioner as directed.(ccol, )

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

Richmond Division

MICHAEL A.

p

1

E

OCT 2 6 20IT

LOISEAU,

Rir.HMOND. VA

V.

3 :17CV177

Civil Action No.
CLARKE,

Respondent.

MEMORANDUM OPINION

Michael
pro

se,

A.

Loiseau,

brings

{"§ 2254

this

Petition,"

a

Virginia

petition

ECF No.

1)

state

pursuant

prisoner

to

28

proceeding

U.S.C.

§ 2254

challenging the manner in which

the Virginia Department of Corrections {"VDOC") is executing his
sentence.

Respondent has moved to dismiss.

forth below,

the Motion to Dismiss

I.

On

March

Spotsylvania

4,

("Circuit

(ECF No.

For the reasons set
9) will be granted.

PROCEDURAL HISTORY

2010,

continuing criminal

the

Circuit

Court")

Court

for

the

County

convicted Loiseau of

enterprise and sentenced him

of

running a

to

an active

prison terra of twenty (20) years.

(Brown Aff. H 4, ECF No. 10-

1.)

became

"On

May

5,

Unit

2010,

Loiseau

(I^

offender . . .
Correspondence

[Jl

—/

CLERK, U.S. 0;SiRiCT COURT

Petitioner,

HAROLD E.

L

5.)

sent

a

state

"On September 8,

Loiseau

a

letter

in

responsible

2015,

the VDOC

response

to

a

written

inquiry

release date."

regarding

with

conduct

Loiseau filed a

the

alleged that

time

computation

Circuit

petition for a

Court.

In

that

projected

writ of habeas

petition,

Loiseau

the VDOC had "not appropriately awarded him good

allowance

credit

to

be

applied

towards

sentence in accordance with Virginia law."
The

and

(Id. H 9 .)

Thereafter,

corpus

his

Circuit

Court

found

that

Loiseau

his

active

{ECF No. 10-2, H 1.)

had

"been

appropriately

credited with sentence reducing credit due to him for the time

he has spent within the custody of VDOC."
appealed.

(Id. t 2.)

Loiseau

The Supreme Court of Virginia refused his petition

for appeal.

Loiseau v.

Clarke,

No.

160845,

at 1

(Va.

Jan.

3,

2017).

On February 27,

2017,

the Court received Loiseau's § 2254

Petition.

II.

APPLICABLE CONSTRAINTS UPON FEDERAL 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

28

U.S.C.

§

or

2254(a).

laws

The

or

treaties

of

Antiterrorisra

the

and

United

States."

Effective

Death

Penalty Act ("AEDPA") of 1996 further circumscribed this Court's
authority to grant
Specifically,

relief by way of

a

writ of

habeas

corpus.

" [s]tate court factual determinations are presumed

to be correct and may be rebutted only by clear and convincing
evidence."

Gray v.

(citing 28 U.S.C.

Branker,

529 F.3d 220,

§ 2254(e)(1)).

228

Additionally,

(4th Cir.

2008)

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

involved

an

in

a

decision

established Federal

law,

resulted

unreasonable

in

a

contrary

of,

to,

or

clearly

determined by the

Supreme

or

decision

determination

was

application

as

Court of the United States;

(2)

that

unreasonable

that

the

of

was

facts

based

in

on

an

light

of

the evidence presented in the State court proceeding.
28

U.S.C.

§

2254(d)(1)-(2).

The Supreme Court has

emphasized

that the question "is not whether a federal court believes the
state

court's

determination
threshold."

determination

was

was

incorrect

unreasonable—a

Schriro

v.

Landrigan,

but

whether

substantially
550

U.S.

465,

that

higher

473

(2007)

(citing Williams v. Taylor, 529 U.S. 362, 410 (2000)).

III.

A.

December 2, 2 008 through May 5,

"Loiseau

Regional
days)

the .

Jail

for

H 6.)

was

continuously

from December 2,

pre-trial

. rate

of

confined

2008

and post-trial

During this period,
.

ANALYSIS

2.25

2010

in

the

Rappahannock

through May 5,
confinement."

2010

(519

(Brown Aff.

"Loiseau earned sentence credit at
days

credit

for

every

30

days

served.

Loiseau

also

received

credit

toward

his

sentence

for

the 519 days he spent in pre-trial and post-trial confinement at
the Rappahannock Regional Jail."
period,

Loiseau earned a

(Id.)

Accordingly,

for this

total of 558 days of credit toward his

twenty-year sentence.

B.

May 5, 2010 to January 30, 2014

"When Loiseau became a state responsible offender on May 5,
2010,

he

.

.

. began earning sentence credit as a VDOC offender

under the Earned Sentence Credit (ESC) system."

(Id. H 7.)

In

Class Level I of the ESC system, VDOC offenders earn the maximum

of 4.5 days of ESC for every 3 0 days served.
2010,

Loiseau

was

continued earning
January 30,

2014

because

was

he

assigned

sentence

ESC

Level

credit

(Id.)

I.

in ESC

On May 5,

(Id.)

Class

"Loiseau

Level

I

until

when he was assigned to ESC Class Level II,"
convicted

of

two

institutional

charges.

(Id.

If 8.)
C.

January 30, 2 014 Until Present

In ESC

Class

Level

II,

for every 30 days served.

Loiseau earned only 3

(Id.)

2014 until May 10, 2 015.

2015,

returned

remained

(Id.)
Dismiss,

at

was

least

until

the

Contemporaneously
the VDOC printed a

to

ESC

filing

with

of

ESC

Loiseau remained in ESC Level

II from January 30,
Loiseau

days

the

Class

of

the

filing

(I^)
Level

On May 10,
I,

Motion

of

the

where

to

he

Dismiss.

Motion

Legal Update which reflects a

to

"Good

Time Release" as of May 18,
earn

ESCs

at

ESC

Level

I

2026 for Loiseau if he continues to
for

the

remainder

of

his

sentence.

(ECF No. 10-1, at 6 (as paginated by CM/ECF).)
D.

As

Loiseau's Claim

he

claimed

in

his

petition

for

appeal

to

the

Supreme

Court of Virginia, Loiseau asserts:^
Petitioner would show that 20 years from December 1,
2008 is December 1, 2028.
[1]
With the jail good
time credit of 230 days which came to April 15, 2028.

(If 365 days is one (1) year 365 days time[s] 20 years
is 7300 days.)
With 4.5 days of out of every thirty
(30) days served is 3 years and 4 months earned
sentencing credit from 20 years sentence.)
So from
April 15, 2028 out of 3 years and 4 months would put
petitioner good time release date at January 15,
2025.

(ECF

No.

decipher,

.

.

1-2,

.

at

9.)

While

Loiseau's

claim

is

difficult

to

it is plainly wrong in several respects and he fails

to demonstrate any error in the calculation of his sentence.
First,

days

of

contrary to Loiseau's assertion,

good

time

credit

for

the

519

he did not earn 230

days

he

spent

in

the

Rappahannock Regional Jail prior to becoming a state responsible
offender.
good

For that period of time,

time

credit

for

every

Loiseau earned 2.25 days of
30

days

served,

totaling

approximately 3 9 days of good time credit.
Second,

Loiseau contends

that he

earns

the maximum rate of

4.5 days of ESCs for every 30 days for the entire portion of his

^ Petition for Appeal 4, Loiseau v. Clarke, No. 160845 (Va.
filed May 27,

2016).

sentence after he became a

state responsible offender.

That is

simply incorrect:
ESCs
accrue
at
various
rates
depending
upon
a
prisoner's classification. Level I
inmates earn the
highest possible ESCs: 4.5 days for every 3 0 days
served. Level II inmates earn 3 days for every 30 days
served. Level III inmates earn 1.5 ESCs for every 30
days served.
Level IV inmates do not earn ESCs.
Puranda v.

Va.

Sept.

Johnson,

30,

No.

2009).

3:08CV687,

2009 WL 3175629,

at *1

(E.D.

Loiseau does not enjoy a protected liberty

interest in earning the maximum amount of ESCs per 3 0 days.

Id.

at

the

*5.

Furthermore,

the

period between January 30,

record

2014

here

reflects

and May 10,

that

2015,

for

Loiseau was

assigned to ESC Level II and earned only 3 days of ESC for every
30 days served.

Finally,
he

should

sentence

of

earn

rather

Prisons,

"awarding

V.

.

is

calculated

than

412

credit

fundamental

.

Loiseau's projection of the total amount of ESCs

the

time

F.3d 526,
for

design

of

time
the

from

actual

the

served.

532

(4th Cir.

not

served

statute,

total
Yi

2005)

would

which

length

390 F.3d 997,

Fed.

conflict

is

to

his

Bureau

(observing

. on account of the prisoner's good behavior"
Scibana,

v.

of

that

with

the

award

credit

{citing

White

1001 {7th Cir. 2004))).

Loiseau has failed to demonstrate any error in the VDOC's

execution of his sentence.

Thus,

the Supreme Court of Virginia

acted

reasonably

§ 2254(d) (1)-(2).

in

rejecting

his

claim.

28

U.S.C.

Loiseau's claim will be dismissed.

The Motion to Dismiss {ECF No. 9) will be granted.

The

§ 2254 Petition will be denied and the action will be dismissed.
A certificate of appealability will be denied.
It is so ordered.

/s/

Robert E. Payne

Date:
Richmond, Virginia

V- ' T