Townes v. Jarvis

ON REHEARING

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CARL MELVIN TOWNES, 

Petitioner-Appellant,

v.

LARRY W. JARVIS, Warden; GENE  No. 05-7382

M. JOHNSON, Director, Virginia

Department of Corrections,

Respondents-Appellees.



Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Claude M. Hilton, Senior District Judge.

(CA-04-582)

Argued: December 3, 2008

Decided: August 19, 2009

Before MOTZ, GREGORY, and SHEDD, Circuit Judges.

Affirmed by published opinion. Judge Motz wrote the opin-

ion, in which Judge Gregory joined. Judge Shedd wrote a dis-

senting opinion.

ARGUED: Justin Sanjeeve Antonipillai, Carl Ezekiel Ross,

ARNOLD & PORTER, L.L.P., Washington, D.C., for Appel-

2 TOWNES v. JARVIS

lant. Richard Carson Vorhis, OFFICE OF THE ATTORNEY

GENERAL OF VIRGINIA, Richmond, Virginia, for Appel-

lees. ON BRIEF: Erika K. Woods, ARNOLD & PORTER,

L.L.P., Washington, D.C., for Appellant. Robert F. McDon-

nell, Attorney General of Virginia, Richmond, Virginia, for

Appellees.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

The Virginia Parole Board found Carl Melvin Townes inel-

igible for discretionary parole. After a state court denied him

habeas relief, Townes filed a petition for a writ of habeas cor-

pus in federal court, claiming that the parole ineligibility

determination violated his due process and equal protection

rights. The district court dismissed the petition. We granted a

certificate of appealability on both constitutional claims.

Because the state released Townes from prison during the

pendency of this appeal, it initially contends that Townes’s

claims are now moot. Alternatively, the state asserts that the

district court properly dismissed the claims. Although we do

not find the claims moot, we agree with the district court that

Townes has failed to state any claim upon which relief can be

granted and so affirm its dismissal of the case.

I.

During a ten-day period in February 1991, Townes robbed

three fast-food restaurants in different Virginia counties. For

two of these crimes, the state specifically convicted Townes

of using or displaying a firearm as part of the felony offenses.

But for the third, Townes pled guilty to common law robbery

in exchange for the government declining to prosecute the

additional firearm charge with which it charged Townes. As

a result of these various convictions, the state committed

TOWNES v. JARVIS 3

Townes to the custody of the Virginia Department of Correc-

tions.

In Virginia, a prisoner generally becomes eligible for

parole after serving a specified portion of his sentence. See

Va. Code Ann. § 53.1-151(A) (2005). However, the state’s

"three-strikes" statute provides that "[a]ny person convicted of

three separate felony offenses of (i) murder, (ii) rape or (iii)

robbery by the presenting of firearms or other deadly weapon

. . . when such offenses were not part of a common act, trans-

action or scheme shall not be eligible for parole." Id. § 53.1-

151(B1). After the Department of Corrections makes a deter-

mination of parole ineligibility under this statute, the Virginia

Parole Board ("the Board") may review that decision. Id.

The Board considered and rejected Townes’s parole appli-

cation, finding him ineligible for parole consideration pursu-

ant to the three-strikes statute. Townes then filed a habeas

corpus petition in the Supreme Court of Virginia, arguing that

the Board violated his due process rights in its method of

counting his predicate offenses and violated his equal protec-

tion rights by discriminating against him because of his race.

The state court promptly dismissed his habeas petition as

"frivolous." Townes v. Dir. of the Dep’t of Corrs., No. 032123

(Va. Nov. 5, 2003).

Townes next filed this habeas petition pursuant to 28

U.S.C. § 2254 (2006), naming as respondents Larry W. Jarvis,

the warden of his prison, and Gene M. Johnson, the Director

of the Virginia Department of Corrections (collectively "the

Warden"). Townes again asserted that the Board’s parole inel-

igibility determination violated his due process and equal pro-

tection rights. The district court granted the Warden’s motion

to dismiss. Townes timely appealed.

While this appeal was pending, Virginia released Townes

from prison on mandatory parole pursuant to Va. Code Ann.

§ 53.1-159 (2005). In addition to the conditions imposed by

4 TOWNES v. JARVIS

his parole, Townes must also serve a period of probation

administered by the state courts.

II.

Initially, the Warden contends that Townes’s release from

custody moots this case. "[T]he doctrine of mootness consti-

tutes a part of the constitutional limits of federal court juris-

diction . . . . [A] case is moot when the issues presented are

no longer ‘live’ or the parties lack a legally cognizable inter-

est in the outcome." United States v. Hardy, 545 F.3d 280,

283 (4th Cir. 2008) (quotations and citations omitted). Partic-

ularly relevant here, "[m]ootness has been described as ‘the

doctrine of standing set in a time frame: The requisite per-

sonal interest that must exist at the commencement of the liti-

gation (standing) must continue throughout its existence

(mootness).’" Arizonans for Official English v. Arizona, 520

U.S. 43, 68 n.22 (1997) (quoting U.S. Parole Comm’n v.

Geraghty, 445 U.S. 388, 397 (1980)).

Thus, for a controversy to be moot, it must lack at least one

of the three required elements of Article III standing: (1)

injury in fact, (2) causation, or (3) redressability. Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). The War-

den does not suggest that Townes lacked standing when he

filed this complaint, but instead contends that Townes’s

release from prison moots this action. For the reasons that fol-

low, however, Townes demonstrates that the Board’s parole-

ineligibility finding continues to result in collateral conse-

quences with respect to the duration of his parole and proba-

tion. Thus, we cannot find this action moot.

First, Townes still asserts an injury-in-fact. Although his

release from prison has foreclosed the possibility of a shorter

period of incarceration, the parole ineligibility finding still

may affect the length of his parole. See Spencer v. Kemna,

523 U.S. 1, 7 (1998) (describing collateral consequences).

Therefore, because Townes could receive a shorter period of

TOWNES v. JARVIS 5

parole if he receives a discretionary parole hearing, he has

properly asserted an injury-in-fact. See Mujahid v. Daniels,

413 F.3d 991, 994-95 (9th Cir. 2005).1

Second, Townes continues to satisfy the causation prong of

the standing requirement. Article III requires "a ‘causal con-

nection between the injury and the conduct complained of,’

meaning that the injury is ‘fairly traceable’ to the defendant’s

actions." Covenant Media of S.C., LLC v. City of N. Charles-

ton, 493 F.3d 421, 428 (4th Cir. 2007) (quoting Lujan, 504

U.S. at 560). Here, the Board’s parole ineligibility finding

precludes Townes from an opportunity to obtain a shortened

period of parole.

Finally, Townes has alleged an injury that still satisfies the

redressability prong. "[F]or an injury to meet the redressa-

bility standard, ‘it must be likely, as opposed to merely specu-

lative, that the injury will be redressed by a favorable

decision.’" In re Mut. Funds Inv. Litig., 529 F.3d 207, 216-17

(4th Cir. 2008) (quoting Lujan, 504 U.S. at 561). In some

cases, like the one at hand, a plaintiff will seek immediate

relief from a federal court as a necessary antecedent to the

ultimate relief he seeks from a different entity, like an admin-

istrative agency. In these situations, to meet the redressability

prong, a party must demonstrate that a favorable decision

from the federal court likely would provide him immediate

relief, but need not demonstrate that it likely would provide

1

Contrary to the dissent’s suggestion, although Townes’s release from

prison has altered the ultimate relief he hopes the Board will grant (a

shortened term of parole as opposed to a shortened sentence), the relief he

seeks from the federal courts has remained constant. That is, Townes still

requests a judgment that the Board’s parole-ineligibility finding violated

his constitutional rights and an order directing the Board to rescind this

finding. Moreover, also contrary to the dissent’s suggestion, Townes need

not again seek relief from the Board, which has already adjudicated

Townes as statutorily ineligible for parole. The law does not require such

a futile act. Cf. Lynce v. Mathis, 519 U.S. 433, 436-37 n.4 (1997); Tesoro

Refining & Mktg. Co. v. FERC, 552 F.3d 868, 873-74 (D.C. Cir. 2009).

6 TOWNES v. JARVIS

him the ultimate, discretionary relief sought from the agency.

See FEC v. Akins, 524 U.S. 11, 25 (1998).

In Akins, the Supreme Court specifically addressed this

very issue. There the FEC contended that plaintiffs lacked

standing because even if the agency "agreed with [the plain-

tiffs’] view of the law," it was "possible" that the FEC could

"still have decided in the exercise of its discretion" not to

grant them relief. Id. According to the FEC, plaintiffs had

failed to show that their alleged harm was (1) fairly traceable

to the FEC’s decision and (2) redressable by judicial action.

The Supreme Court flatly rejected this argument, explaining

that it could not "know that the FEC would have exercised its

. . . discretion" to deny plaintiffs relief. Id. (emphasis added).

The Court further explained:

Agencies often have discretion about whether or not

to take a particular action. Yet those adversely

affected by a discretionary agency decision generally

have standing to complain that the agency based its

decision upon an improper legal ground. If a review-

ing court agrees that the agency misinterpreted the

law, it will set aside the agency’s action . . . even

though the agency . . . might later, in the exercise of

its lawful discretion, reach the same result for a dif-

ferent reason. Thus [plaintiffs’] "injury in fact" is

"fairly traceable" to the FEC’s decision . . . , even

though the FEC might reach the same result exercis-

ing its discretionary powers lawfully. For similar

reasons, the courts in this case can "redress" [plain-

tiffs’] "injury in fact."

Id. (emphasis added; citations omitted). Thus, the Court in

Akins held that a plaintiff could establish redressability simply

by demonstrating that an agency "misinterpreted the law,"

even though the agency might ultimately "reach the same

result." The Court recognized that, in this situation, a plaintiff

can establish redressability without demonstrating that the

TOWNES v. JARVIS 7

agency would likely grant the ultimate relief sought; to

require a showing of likelihood of ultimate relief in this situa-

tion would involve courts in the speculative (if not impossi-

ble) task of predicting how an agency will exercise its

discretion.

Of course, Akins also indicates that if a court "know[s]"

that an agency will not grant the ultimate relief the plaintiff

seeks, the plaintiff lacks standing. Id. Or, put another way, if

"no realistic possibility" exists that a plaintiff can obtain the

ultimate relief, he will fail to satisfy the redressability prong.

See Albuquerque Indian Rights v. Lujan, 930 F.2d 49, 56

(D.C. Cir. 1991); Ranger Cellular v. FCC, 348 F.3d 1044,

1048-50 (D.C. Cir. 2003).

The Supreme Court has applied this same standing analysis

to cases in which plaintiffs challenge government racial set-

aside policies. Such plaintiffs need not show a likelihood that

they would gain the ultimate relief sought. Rather, they need

only show that they are "able and ready" to seek the opportu-

nity and "that a discriminatory policy prevents [them] from

doing so on an equal basis." Ne. Fla. Chapter of Associated

Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656,

666 (1993); see also W.H. Scott Constr. Co. v. City of Jack-

son, 199 F.3d 206, 212-15 (5th Cir. 1999); Lac Vieux Desert

Band of Lake Superior Chippewa Indians v. Mich. Gaming

Control Bd., 172 F.3d 397, 403-06 (6th Cir. 1999).2

2

Contrary to the dissent’s claim, Townes is "able and ready" to obtain

the ultimate relief he seeks—a shortened period of parole. Moreover, our

standing holding is not an "advisory opinion" but simply a straight-

forward application of Akins and the racial preference cases. Indeed,

Townes’ claim mirrors those of the plaintiffs in the racial preference cases.

Like them, he alleges that "a discriminatory policy" (the Board’s allegedly

discriminatory parole ineligibility determination) "prevents" him from

seeking something (a shortened period of parole) "on an equal basis" with

other persons. Northeastern Florida, 508 U.S. at 666. Thus, as one of our

sister circuits has recently held, the standing framework set forth in the

racial preference cases applies in the present context. See Settles v. U.S.

Parole Comm’n, 429 F.3d 1098, 1101-03 (D.C. Cir. 2005) (applying

Northeastern Florida to a parole regulation to find that "[a] decision from

this court finding the regulation unlawful and requiring a new parole hear-

ing with representation would redress [plaintiff’s] injury").

8 TOWNES v. JARVIS

The immediate relief sought by Townes is a judgment that

the state’s parole-ineligibility determination was unconstitu-

tional, necessitating a remand to the district court to order the

Parole Board to rescind that determination. We have previ-

ously granted similar relief. See Fender v. Thompson, 883

F.2d 303, 307-08 (4th Cir. 1989) (remanding to the district

court for entry of an order directing the Virginia Department

of Corrections to rescind its parole ineligibility determina-

tion). Therefore, if Townes prevails on the merits before us,

he likely will obtain the immediate relief he seeks.

Of course, Townes hopes that this immediate relief will

result in a hearing before the Board and a reduction in the

length of his parole. The Warden’s contention that "[u]nder

Virginia law, the Virginia Parole Board has absolute discre-

tion in matters of parole," Supp. Br. of Appellees at 9, belies

any suggestion that the Board lacks power to provide Townes

relief. Given the wide discretion the Board enjoys, see Vann

v. Angelone, 73 F.3d 519, 523 (4th Cir. 1996), we do not

"know" it would refuse to exercise its discretion to shorten

Townes’s period of parole. Akins, 524 U.S. at 25. Like the

Supreme Court in Akins, we refuse to speculate as to how an

independent agency would exercise its discretion. See id.

Thus, Townes has set forth facts sufficient to demonstrate that

his claims are not moot, and we accordingly turn to the merits

of his appeal.3

3

Our friend in dissent attempts to find support for his position in a num-

ber of cases holding a claim moot because the plaintiff failed to allege that

the challenged act resulted in continuing collateral consequences. See

Spencer, 523 U.S. at 14-16 (parole revocation does not have collateral

consequences that survive prisoner’s release); Hardy, 545 F.3d at 283-85

(prisoner completed term of supervised release); Incumaa v. Ozmint, 507

F.3d 281, 286-89 (4th Cir. 2007) (prisoner no longer subject to challenged

condition of confinement); Taylor v. Rogers, 781 F.2d 1047, 1051 (4th

Cir. 1986) (same); Inmates v. Owens, 561 F.2d 560, 561-63 (4th Cir.

1977) (same). These cases are inapposite because Townes clearly does

allege continuing collateral consequences: he claims that the parole-

ineligibility finding improperly extends his period of parole and probation.

TOWNES v. JARVIS 9

III.

Townes contends that the Supreme Court of Virginia’s

rejection of both his equal protection and due process claims

provide a basis for habeas relief in this court.4 We can grant

habeas relief only when an underlying state-court adjudication

was "contrary to, or involved an unreasonable application of,

clearly established Federal law," or "was based on an unrea-

sonable determination of the facts." 28 U.S.C.

§ 2254(d)(1)-(2) (2006); see also Williams v. Taylor, 529 U.S.

The dissent also seeks to rely on United States v. Johnson, 529 U.S. 53,

58-60 (2000), which simply held that, under federal law, an error in a pris-

oner’s release date does not automatically shorten the duration of that pris-

oner’s term of supervised release. Mootness, however, was not at issue in

Johnson. The dissent relies on one circuit’s holding that Johnson renders

such attacks on supervised release moot. See Burkey v. Marberry, 556

F.3d 142, 148-51 (3d Cir. 2009). Not only does Burkey constitute out-of-

circuit precedent interpreting the very different federal supervised release

scheme, but it also represents a minority interpretation of Johnson. Two

other circuits have held Johnson does not render such claims moot. See

Levine v. Apker, 455 F.3d 71, 76-77 (2d Cir. 2006); Mujahid, 413 F.3d at

993-95. We need not enter this fray because Johnson has no bearing on

how the Virginia Parole Board chooses to exercise its "absolute" discre-

tion over parole. See Garrett v. Commonwealth, 415 S.E.2d 245, 247 (Va.

Ct. App. 1992).

4

We note that after Townes filed his complaint but prior to the filing of

appellate briefs in this case, the Supreme Court held that 42 U.S.C. § 1983

(2000) provides a proper vehicle for challenges to state parole ineligibility

determinations. See Wilkinson v. Dotson, 544 U.S. 74, 82 (2005). It is not

entirely clear whether a habeas petition under 28 U.S.C. § 2254 (2006)

may also provide an avenue for such a challenge. See Benchoff v. Col-

leran, 404 F.3d 812, 815 n.4 (3d Cir. 2005) (noting lack of clarity and cit-

ing cases); Wilkinson, 544 U.S. at 86-87 (Scalia, J., concurring). However,

Wilkinson does not expressly foreclose the use of § 2254 to bring such a

challenge. Moreover, neither the state nor Townes’s appointed counsel has

suggested to us in briefs or at oral argument that a habeas petition is an

improper vehicle for Townes’ claim. Nor has any party ever urged that we

construe the complaint as having been brought under § 1983 rather than

§ 2254. Accordingly, we treat Townes’s claims as titled by him—the basis

for habeas relief pursuant to § 2254.

10 TOWNES v. JARVIS

362, 412-13 (2000). Townes expressly acknowledges the

applicability of this rigorous standard of review. See Brief of

Appellant at 9. With it in mind, we examine first his due pro-

cess claim and then his equal protection claim.

A.

Townes alleges that the Board denied him due process

rights when it found him ineligible for parole under the Vir-

ginia three-strikes parole ineligibility statute, Va. Code Ann.

§ 53.1-151(B1) (2005). He contends that this provision

applies only if the state has proven that a person has commit-

ted three armed robberies, and he asserts that only two of his

convictions meet this requirement. Townes concedes that the

state convicted him of firearm offenses in connection with

two of his robbery convictions. But he argues that because the

state did not convict him of a firearm offense in connection

with the third robbery, the Board erred in holding that that

third crime counted as an armed robbery for purposes of the

three-strikes statute.

Townes has not identified any clearly established federal

law that prohibits the Board from considering conduct unnec-

essary to a conviction as part of its three-strikes determina-

tion. Nor has he demonstrated that the state unreasonably

determined any facts in applying the governing legal princi-

ples to his case. This claim cannot, therefore, provide a basis

for habeas relief. See Ramdass v. Angelone, 530 U.S. 156, 166

(2000) (Kennedy, J., plurality op.).

B.

Townes, an African American, also maintains that the

Board violated his equal protection rights by discriminating

against him because of his race. Specifically, he alleges that

the Board violated these rights by declining to provide him

the benefit of the "common act" exception to the three-strikes

TOWNES v. JARVIS 11

parole eligibility statute, when it did provide such a benefit to

a Caucasian woman.

Townes contends that the "district court failed . . . to prop-

erly apply the [12(b)(6)] standard of review" in rejecting his

equal protection claim. Brief of Appellant at 29, 30; see also

id. at 31-35; Reply Brief at 16-19. When "assessing whether

a § 2254 claim has been ‘properly dismissed without an evi-

dentiary hearing or discovery,’" a court "must evaluate its

underlying allegations pursuant to the principles of Federal

Rule of Civil Procedure 12(b)(6)." Wolfe v. Johnson, 565 F.3d

140, 160 (4th Cir. 2009) (quoting Conaway v. Polk, 453 F.3d

567, 582 (4th Cir. 2006)). Therefore, a court must accept as

true a habeas petition’s well-pleaded allegations (but not its

"legal conclusions," see Edwards v. City of Goldsboro, 178

F.3d 231, 244 (4th Cir. 1999)). Of course, when a state court

has adjudicated a habeas claim on the merits (Townes con-

cedes that, under controlling circuit precedent, the state court

adjudicated his claim on the merits, Brief of Appellant at 9

n.3), the petitioner must allege facts sufficient to meet the

exacting standard set forth in 28 U.S.C. § 2254(d) (2006). See

Bell v. Jarvis, 236 F.3d 149, 158 (4th Cir. 2000). Townes

maintains that the allegations in his complaint, when taken as

true, establish the Supreme Court of Virgina’s decision as

"based on an unreasonable determination of the facts." 28

U.S.C. § 2254(d)(2).5 For the following reasons this argument

fails.

The Virginia three-strikes statute is race neutral. See Va.

Code Ann. § 53.1-151(B1) (2005). Therefore, to succeed on

any equal protection challenge to it, a litigant must allege

facts demonstrating "[1] that he has been treated differently

5

Townes also briefly asserts that the Supreme Court of Virginia’s rejec-

tion of his equal protection claim "was contrary to and an objectively

unreasonable application" of clearly established federal law. Brief of

Appellant at 29. But he never offers any rationale for this assertion and we

see none.

12 TOWNES v. JARVIS

from others with whom he is similarly situated and [2] that

the unequal treatment was the result of intentional or purpose-

ful discrimination," i.e., in this case, discrimination on the

basis of race. Morrison v. Garraghty, 239 F.3d 648, 654 (4th

Cir. 2001) (emphasis added).

Relying only on a single newspaper article, Townes alleges

that he is similarly situated to Sue Kennon, reportedly a white,

"upper middle-class housewife," who committed four rob-

beries with a broken toy pistol over the course of eight days.

See Bill Baskervill, Convicted Bank Robber Finds Unlikely

Allies, Richmond Times Dispatch, July 28, 2003, at B5.

According to the newspaper article, the Board ruled that Ken-

non’s four crimes in eight days constituted "a single criminal

act," exempting her from the three-strikes statute. Id. Kennon

thus became eligible for discretionary parole, which the Board

granted. Id.

Clearly, in some respects Townes’s and Kennon’s crimes

differ. Kennon committed four robberies in eight days with

the same toy pistol while Townes, accompanied by various

accomplices, committed three robberies in ten days with dif-

ferent real guns. Just as clearly, however, in some respects

their crimes are similar. Both robbed a series of retail estab-

lishments. Both completed these robberies in less than two

weeks. And both displayed a weapon during the robberies.

But even assuming Townes alleged, and the state court unrea-

sonably rejected, facts sufficient to satisfy the first element of

an equal protection claim—unequal treatment of similarly sit-

uated persons6—he has failed to allege facts sufficient to sat-

6

The district court suggested that "[i]n light of the myriad of factors

involved in a parole decision, ‘[i]t is difficult to believe that any two pris-

oners could ever be considered ‘similarly situated’ for the purpose of judi-

cial review of an equal protection claim.’" Townes v. Jarvis, No.

1:04cv582 (E.D. Va. Aug. 22, 2005) (emphasis added) (quoting Reffitt v.

Nixon, 917 F. Supp. 409, 414 (E.D. Va. 1996)). This analysis seems some-

what inapposite to the case at hand because Townes does not challenge the

TOWNES v. JARVIS 13

isfy the second element of such a claim—intentional

discrimination.

To satisfy this second element in a habeas petition, Townes

must provide allegations sufficient to hold that the state court

unreasonably determined the facts against him when it

rejected his claim that the Board intentionally or purposefully

discriminated against him on the basis of race. This is so

because "[t]o prove that a statute has been administered or

enforced discriminatorily," and so violates equal protection

rights, a plaintiff must show "more . . . than the fact that a

benefit was denied to one person while conferred on another."

Sylvia Dev. Corp. v. Calvert County, 48 F.3d 810, 819 (4th

Cir. 1995) (emphasis added). He must also allege that the

state intended to discriminate against him. Id. Townes alleges

no facts that, if proved, would demonstrate that the Board

intentionally discriminated against him. See Rivera-Powell v.

N.Y. City Bd. of Elections, 470 F.3d 458, 470 (2d Cir. 2006).

A fortiori, Townes has failed to allege a basis for us to hold

that the state court unreasonably determined his claim to be

frivolous.

Of course, Townes alleges that "[i]n a similar case, (Sue

Kennon), a white upper-middle-class woman in similar cir-

cumstances and facts was given consideration not given to

this black male." But his sole allegation as to the Board’s

motive is:

Board’s ultimate decision to deny him parole based on any of a "myriad

of factors." Rather he challenges the Board’s refusal to provide him the

benefit of the exception to the three-strikes statute, which rendered him

ineligible for parole consideration. The three-strikes statute provides that

this inquiry turns only on whether a person’s crimes constitute "a common

act, transaction or scheme." Va. Code Ann. § 53.1-151(B1) (2005). Two

persons with identical criminal histories who committed identical crimes

(perhaps co-conspirators) would surely be "similarly situated" for pur-

poses of determining parole eligibility.

14 TOWNES v. JARVIS

The arbitrary and [capricious] refusal of the Board to

grant Petitioner the same form of consideration can

be seen as deliberate discrimination: Ms. Kennon’s

crimes have received different treatment from Peti-

tioner’s crimes. Petitioner was a 16 year old, black

male from the projects in Richmond while Ms. Ken-

non is a white, middle-class female.

Thus, Townes only alleges that his case "can be seen as

deliberate discrimination" (emphasis added). Not only does he

never allege that the Board actually did intentionally discrimi-

nate against him, but more significantly, Townes never

alleges any of the factors that "have been recognized as pro-

bative of whether a decisionmaking body was motivated by a

discriminatory intent." Sylvia Dev. Corp., 48 F.3d at 819. For

example, Townes does not allege a "consistent pattern" of

intentional discrimination by the Parole Board, a "history of

discrimination" by the Board, a "specific sequence of events"

leading up to the Board’s ineligibility finding, or "contempo-

rary statements by decisionmakers" evidencing intentional

discrimination by the Board. Id. In sum, Townes sets forth no

facts—indeed no allegations—supporting the contention that

the Board intentionally discriminated against him because of

his race, let alone that the state court acted unreasonably in

rejecting this claim.

Accordingly, the district court did not err in dismissing

Townes’s equal protection claim.

IV.

For the foregoing reasons, we affirm the judgment of the

district court.

AFFIRMED

SHEDD, Circuit Judge, dissenting:

Carl Melvin Townes commenced this habeas action in 2004

while he was a prisoner confined in a Virginia correctional

TOWNES v. JARVIS 15

center. In his petition, Townes argued that the state erred by

classifying him as ineligible for discretionary parole, and he

asked for an order directing the Virginia Parole Board (the

"Board") to grant him parole. However, after the district court

dismissed his petition on the merits as frivolous, the Board

paroled Townes pursuant to Virginia’s mandatory parole law.

While the majority concludes that Townes’ mandatory parole

does not render his appeal moot, I conclude that it does

because his claims no longer satisfy Article III’s redressability

requirement.

In essence, what Townes wants and what the majority pro-

vides is an advisory opinion. Townes does not argue that we

can provide him with any relief that would directly remedy

his alleged injury. Rather, he asserts that he would use an

opinion from us stating that the Board erred in its parole eligi-

bility determination to help him persuade the Board to exer-

cise its discretion and shorten his current term of parole,

thereby obtaining a remedy for his injury. However, the

Board’s decision to terminate a period of parole is guided by

discretionary considerations that are wholly distinct from the

factors that guided its decision to classify Townes as ineligi-

ble for discretionary parole from his earlier incarceration.

Therefore, there is nothing in this record to support the con-

clusion that the Board would be likely to remedy Townes’

injury by shortening his parole if we issued a decision in his

favor — a conclusion that we must reach before we can exer-

cise jurisdiction over the merits of his appeal. Accordingly, I

dissent.

I

While Townes was incarcerated for robbing three different

restaurants, the Virginia Department of Corrections (the

"VDOC") determined he was ineligible for consideration for

discretionary parole because he had three qualifying convic-

tions within the meaning of Virginia’s three-strikes law. See

Va. Code Ann. § 53.1-151(B1). Townes appealed that deter-

16 TOWNES v. JARVIS

mination to the Board, which affirmed the VDOC’s decision.

Townes then challenged the Board’s decision by filing a peti-

tion for writ of habeas corpus with the Virginia Supreme

Court, but that court dismissed his petition as frivolous in

November 2003.

Townes then commenced this habeas action in 2004, chal-

lenging the Virginia Supreme Court’s decision. After the dis-

trict court dismissed his petition as frivolous, we granted

Townes a certificate of appealability. Before we decided his

appeal, however, the Board paroled Townes pursuant to Vir-

ginia’s mandatory parole law. See Va. Code Ann. § 53.1-159.1

In light of his release from prison, we ordered the parties to

file supplemental briefs on mootness. In his supplemental

brief, Townes argues that his appeal still satisfies Article III

requirements because (1) he continues to suffer collateral con-

sequences or an injury-in-fact in the form of certain restric-

tions on his freedom that are associated with his current term

of parole,2 and (2) his injury is redressable because there is a

"possibility" that the Board would exercise its discretion and

shorten his parole if we issued an opinion stating that the

Board erred in its earlier parole eligibility determination. See

Supplemental Brief of Appellant at 2-3, 8-9 (emphasis added).

II

As the majority recognizes, we must resolve the threshold

jurisdictional question of whether Townes’ release from

prison moots his challenge to the Board’s parole eligibility

determination. In answering this question, we need not

resolve any novel issues of law. We have consistently held

that a prisoner’s transfer or release from prison moots his

1

According to a stipulation submitted by the parties, Townes is cur-

rently serving a term of parole and a separate term of probation.

2

Under the terms of his parole, Townes must inter alia maintain regular

employment, permit the Parole Officer to visit his home, and follow the

Parole Officer’s instructions.

TOWNES v. JARVIS 17

challenge to a determination that affected his confinement,

including a determination that, according to the plaintiff,

unlawfully deprived him of consideration for parole. See, e.g.,

Taylor v. Rogers, 781 F.2d 1047, 1049, 1051 (4th Cir. 1986).

Applying this well-established precedent here, I conclude that

Townes’ appeal is moot.

A.

The mootness doctrine is a limit on our jurisdiction that

"originate[s] in Article III’s ‘case’ or ‘controversy’ language."

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006).

Generally speaking, mootness can be described as "the doc-

trine of standing set in a time frame," Arizonans for Official

English v. Arizona, 520 U.S. 43, 68 n.22 (1997) (quotation

marks omitted), and it recognizes that under Article III the

plaintiff normally bears the burden of establishing throughout

all stages of litigation (1) that he is suffering an injury-in-fact

or continuing collateral consequence,3 (2) that his injury is

fairly traceable to the challenged action or decision, and (3)

that a favorable decision would be likely to redress his injury.

Spencer, 523 U.S. at 7, 10-14; Hardy, 545 F.3d at 283-84.

B.

Mindful of these Article III requirements, we have recog-

nized that "[m]ootness questions often arise in cases involving

inmate challenges to prison policies or conditions," and we

have consistently held "that the transfer of an inmate from a

unit or location where he is subject to the challenged policy,

practice, or condition, to a different unit or location where he

is no longer subject to the challenged policy, practice, or con-

3

When a plaintiff like Townes has been released from prison during the

pendency of an action, the Supreme Court has used the concept of contin-

uing "collateral consequences" as an alternative to the injury-in-fact

requirement. See Spencer v. Kemna, 523 U.S. 1, 7-8, 14 (1998); see also

United States v. Hardy, 545 F.3d 280, 283-84 & n.2 (4th Cir. 2008).

18 TOWNES v. JARVIS

dition moots his claims." Incumaa v. Ozmint, 507 F.3d 281,

286-87 (4th Cir. 2007); see also Hardy, 545 F.3d at 283-85;

Taylor, 781 F.2d at 1049, 1051 (dismissing claim that plain-

tiffs were unlawfully denied consideration for parole as

moot); Inmates v. Owens, 561 F.2d 560, 562 (4th Cir. 1977).

The reasons for finding mootness in such a context are clear:

Any declaratory or injunctive relief ordered in the

inmate’s favor in such situations would have no

practical impact on the inmate’s rights and would not

redress in any way the injury he originally asserted.

And the newly situated inmate has no further need

for such declaratory or injunctive relief, for he is free

of the policy or practice that provoked his lawsuit in

the first place.

Incumaa, 507 F.3d at 287 (emphasis added).

I conclude that these precedents control our analysis and

render the claims Townes presented in his habeas petition and

in his opening brief on appeal moot. As indicated above,

Townes originally asserted that the Board erred by classifying

him as ineligible for discretionary parole and thus keeping

him incarcerated. However, in light of his release from prison,

Townes is no longer ineligible for parole because of the deter-

mination he challenged in his habeas petition. Indeed, he has

already obtained the relief he sought in his petition — release

from incarceration — because he is now on parole and is no

longer in prison. Thus, any relief ordered in his favor "would

not redress in any way the injury he originally asserted," and

he "has no further need for . . . relief, for he is free of the pol-

icy or practice that provoked his lawsuit in the first place."

Id.; see also Taylor, 781 F.2d at 1048-49, 1051. Therefore, his

claims are moot.4

4

Our precedents in this area of law are in accord with cases from other

circuits that apply the mootness doctrine and dismiss habeas cases like this

one when an inmate challenges his parole eligibility and is then paroled

TOWNES v. JARVIS 19

In attempting to distinguish our precedents in this area of

law, the majority suggests that they are inapposite because

they all involved actions that were dismissed as moot "be-

cause the plaintiff failed to allege that the challenged act

resulted in continuing collateral consequences." Maj. Op., at

8 n.3 (emphasis added). Contrary to the majority’s suggestion,

however, our opinions in Incumaa, Taylor, and Inmates did

not dismiss the plaintiffs’ actions as moot for failure to allege

continuing collateral consequences. In Incumaa, for example,

it is apparent that we dismissed that action as moot in part

because of our inability to "redress" the plaintiffs’ claimed

injuries — not because of the plaintiffs’ failure to allege con-

tinuing collateral consequences or an injury-in-fact. Incumaa,

507 F.3d at 283, 286-87 ("conclud[ing] that Incumaa no lon-

ger stands to benefit from the declaratory and injunctive relief

he seeks" and noting that any "relief ordered in the inmate’s

favor in such situations would have no practical impact on the

inmate’s rights and would not redress in any way the injury

he originally asserted" (emphasis added)).

Moreover, to the extent the majority is suggesting that I

would dismiss Townes’ action as moot for failure to allege

collateral consequences, see Maj. Op., at 8-9 n. 3, this is sim-

ply not correct. As indicated above, I conclude that Townes’

appeal is moot because a decision in his favor would not be

likely to redress his alleged injury and therefore would fail to

satisfy this separate and independent Article III requirement.

I express no opinion on whether he has proved collateral con-

sequences or satisfied the other Article III requirements.

while his case is on appeal. See, e.g., Burkey v. Marberry, 556 F.3d 142,

146-51 (3d Cir. 2009); Fendler v. U.S. Bureau of Prisons, 846 F.2d 550,

555 (9th Cir. 1988); Vandenberg v. Rodgers, 801 F.2d 377, 378 (10th Cir.

1986); Graham v. U.S. Parole Comm’n, 732 F.2d 849, 850 (11th Cir.

1984); Granville v. United States, 613 F.2d 125, 126 (5th Cir. 1980);

Brady v. U.S. Parole Comm’n, 600 F.2d 234, 236 (9th Cir. 1979).

20 TOWNES v. JARVIS

C.

Perhaps because Townes recognizes that Incumaa and our

other precedents render his original claim moot, he presents

a new argument in his supplemental brief.5 There, he argues

that his appeal continues to satisfy the Article III redressa-

bility requirement — notwithstanding his release from prison

— because, if we hold that the Board erred by classifying him

as ineligible for discretionary parole, it is "possib[le]" that the

Board will redress his alleged injury by exercising its discre-

tion and shortening his current term of parole. See Supple-

mental Brief of Appellant at 8-9 (emphasis added).

1.

As previously stated, the Article III limits on our jurisdic-

tion include a requirement that the plaintiff’s injury be

redressable, and it has long been settled that the normal stan-

dard for measuring whether an injury is redressable is whether

a decision in the plaintiff’s favor would be likely to remedy

his injury. See, e.g., Spencer, 523 U.S. at 7. Here, Townes

does not argue that a decision in his favor would be "likely"

to remedy his injury. In fact, Townes does not argue that a

decision in his favor would in any way directly remedy his

injury. See Supplemental Brief of Appellant at 8-9. Instead,

Townes contends that he only needs to show that there is a

"possibility" that a decision in his favor would redress his

injury, and he asserts that he has made this showing because

5

Compare Brief of Appellant at 12-35 (arguing that Townes should be

classified as eligible for parole), with Supplemental Brief of Appellant at

1-9 (arguing that Townes should be given a shorter period of parole).

While the majority asserts that "the relief [Townes] seeks from the federal

courts has remained constant," Maj. Op., at 5 n.1, this assertion is incor-

rect. In his federal habeas petition, Townes asked the court to provide

three specific forms of relief, including an order directing the Board to

parole Townes. Given that the Board has already paroled Townes, he is

no longer seeking this form of relief and therefore the relief he is seeking

from the federal courts has not remained constant.

TOWNES v. JARVIS 21

the Board might shorten his current term of parole if we issue

a decision in his favor. Id.

In essentially agreeing with this argument, the majority

concludes that Townes does not need to show that his asserted

injury is likely to be redressed by a favorable decision from

this Court. This is so, the majority states, because this case

falls within a special category of cases where the plaintiff

needs relief from a federal appeals court as a "necessary ante-

cedent" to obtaining the ultimate relief he wants. Maj. Op., at

5, 7. However, this is not one of those cases. As Townes

acknowledged during oral argument, he does not need any

merits-based relief from us to obtain a remedy for his injury.

Indeed, Townes currently is (and has been) capable of asking

the Board to shorten his parole, and the Board currently pos-

sesses authority to grant him this relief. See, e.g., Va. Code

Ann. § 53.1-136.6 Accordingly, any asserted restriction on

Townes’ freedom can currently be adjusted through existing

state legal and administrative processes regardless of whether

he obtains favorable merits-based relief from us.7

The majority also states that the redressability analysis

applied by the Supreme Court in racial set-aside cases sup-

ports its position because in those cases the plaintiff does not

need to show that he is likely to obtain the ultimate relief he

wants. See Maj. Op., at 6-7. Contrary to the majority’s sug-

gestion, however, the Supreme Court’s racial set-aside cases

do not eliminate the requirement that a favorable decision be

likely to remedy the plaintiff’s injury. See, e.g., Ne. Fla.

Chapter of Associated Gen. Contractors of Am. v. City of

Jacksonville, 508 U.S. 656, 663-64, 666 (1993).

6

Further, Virginia law authorizes a state court to shorten his term of pro-

bation. See, e.g., Va. Code Ann. § 19.2-304.

7

Townes may understandably want an advisory opinion which he

believes would assist him in obtaining the ultimate relief he wants, but that

would be true of any number of litigants in federal court, and we simply

are not empowered to issue such opinions.

22 TOWNES v. JARVIS

Moreover, the majority’s reliance on set-aside cases is

inapposite because in those case, as the majority recognizes,

the plaintiff must include a showing that he is "able and

ready" to seek the ultimate benefit he wants, Maj. Op., at 7,

and Townes cannot make this showing. He is not "able and

ready" to obtain the ultimate relief he sought in his habeas

petition — which was an order declaring him eligible for dis-

cretionary parole and the shortening of his term of incarcera-

tion — because he is no longer incarcerated and is now on

parole. Therefore, the redressability analysis that applies in

set-aside cases does not apply here.8

The majority also asserts that FEC v. Akins, 524 U.S. 11

(1998), supports its new approach to redressability, stating

that the Akins "Court recognized that . . . a plaintiff can estab-

lish redressability without demonstrating that the agency

would likely grant the ultimate relief sought." Maj. Op., at

6-7. However, Akins did not state that a plaintiff can establish

redressability without showing that the agency would likely

grant the ultimate relief sought. Rather, when discussing an

entirely different Article III requirement — causation — the

Akins Court stated that the plaintiff’s injury was fairly trace-

able to the agency’s determination even though the agency

might reach the same decision on remand. Akins, 524 U.S. at

25.

In addition, the majority’s reliance on Fender v. Thompson,

883 F.2d 303 (4th Cir. 1989), does not support the exercise of

jurisdiction in this case because, unlike Townes, the petitioner

8

The majority cites Settles v. U.S. Parole Com’n, 429 F.3d 1098 (D.C.

Cir. 2005), in support of its assertion that the jurisdictional framework set

forth in racial set-aside cases applies in Townes’ case and supports finding

that this action is still live. Maj. Op., at 7 n.2. However, the mootness

analysis that the D.C. Circuit applied in Settles is entirely different than

the analysis that applies here. In Settles, the D.C. Circuit determined that

the action was "not moot because Settles has not yet been released" from

prison. Settles, 429 F.3d at 1101. It is precisely because Townes has been

released from prison that his appeal is now moot.

TOWNES v. JARVIS 23

in Fender was still in prison when we decided that appeal.

Thus, Fender provides no basis for exercising jurisdiction

over an appeal when the petitioner has been paroled.

2.

Viewing Townes’ new argument under the proper redressa-

bility standard makes it clear that his claims are moot.

Townes has not established (and it is not at all apparent to me)

that a decision in his favor (i.e. one stating that the Board

erred in classifying him as ineligible for parole) would be

likely to result in the Board exercising its discretion and short-

ening his current period of parole.

When the Board classified Townes as ineligible for parole,

it made that determination based on its application of Virgin-

ia’s discretionary parole eligibility statute, which provides

that a person shall not be eligible for parole if he has three

qualifying convictions. See Va. Code Ann. § 53.1-151. In

contrast, when determining whether to shorten Townes’

parole, the Board must apply its own regulations and weigh

entirely different considerations, including the best interests

of society.9 In other words, while the body that determined

Townes’ eligibility for discretionary parole is the same as the

one vested with authority to shorten his current term of

parole, the Board’s determination in each instance is based on

entirely different considerations, and there is simply nothing

in the record to support the conclusion that the Board would

likely shorten Townes parole if we issued a decision stating

that it erred in interpreting and applying Virginia’s discretion-

ary parole eligibility statute to Townes. Indeed, there is not

9

The Board has adopted rules and procedures governing the parole pro-

cess. See Virginia Parole Board Policy Manual (Oct. 2006). As relevant

here, the Board’s guidelines provide that "[t]he Board may terminate

active parole supervision pending completion of the parole period at any

time upon a finding that such termination would be in the best interest of

society and the parolee." Id. at 24-25.

24 TOWNES v. JARVIS

even any evidence that the Board would consider the propri-

ety vel non of its parole eligibility determination when deter-

mining whether to shorten Townes’ parole.10

In short, determining whether Townes’ injury is likely to be

redressed depends upon choices that would be made by the

Board — an independent actor not before the Court whose

exercise of legitimate discretion we cannot presume to control

or predict. Indeed, my view is consistent with ASARCO, Inc.

v. Kadish, 490 U.S. 605 (1989), where a plurality of justices

determined that a party failed to satisfy Article III’s redressa-

bility requirement. There, the plurality stated that "[w]hether

the association’s claims of economic injury would be

redressed by a favorable decision in this case depends on the

unfettered choices made by independent actors not before the

courts and whose exercise of broad and legitimate discretion

the courts cannot presume either to control or to predict." Id.

at 614.11

10

In determining whether the Board would be likely to reduce Townes’

parole if we decided that it erroneously denied him consideration for dis-

cretionary parole and thereby possibly extended his period of active incar-

ceration, the Supreme Court’s opinion in United States v. Johnson, 529

U.S. 53 (2000), is instructive. There, the Court rejected the concept of

interchangeability of supervised release and incarceration, holding that a

supervised release term begins to run on the day the prisoner is released

from prison — not the date on which he lawfully should have been

released — because "[s]upervised release fulfills rehabilitative ends, dis-

tinct from those served by incarceration," and "[t]he objectives of super-

vised release would be unfulfilled if excess prison time were to offset and

reduce terms of supervised release." Johnson, 529 U.S. at 59. This is also

apparently true under Virginia law. See Virginia Parole Board Policy

Manual, at 1. Contrary to the majority’s suggestion, see Maj. Op., at 8-9

n.3, I discuss Johnson, not to establish mootness, but, to illustrate one rea-

son why I believe Townes has not shown that the Board would be likely

to shorten his parole if we issued a decision stating that he was errone-

ously classified as ineligible for discretionary parole.

11

This is not to say that the Board’s decision to classify Townes as ineli-

gible for parole is necessarily insulated from review. It may be that a court

would have jurisdiction to review the Board’s determination if Townes

TOWNES v. JARVIS 25

III

For the foregoing reasons, I dissent. I would dismiss

Townes’ appeal as moot and not address the merits of his

claims.

brought an action for damages, for example a claim under 42 U.S.C.

§ 1983. See Slade v. Hampton Roads Reg’l Jail, 407 F.3d 243, 248-49 (4th

Cir. 2005) (holding that former detainee’s request for injunctive relief is

moot, but his "request for monetary relief is not moot even though [he] has

been released from Jail"). Here, however, Townes filed a habeas action,

not a claim for damages.