Brown v. Brown

IN THE UNITED STATES DISTRICT COURT FOR THE—— —

EASTERN DISTRICT OF VIRGINIA pol he | □□

Alexandria Division r | wera |)

Demmerick Eric Brown, ) CLERK, U.S. DISTRICT COURT

(a/k/a Denrick Brown) ) : ANH VIRGINIA

Petitioner, ) peat □□□□

v. 1:17ev52 (CMH/JFA)

Karen Brown, et al.,

Respondents. )

MEMORANDUM OPINION

Petitioner Demmerick Eric Brown, a Virginia inmate proceeding pro se, filed this petition

for writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his August 3, 2015

revocation of parole. The claims allege multiple constitutional violations, challenges to various

statutes; the retroactivity of a policy to his pre-1995 convictions; that he is being detained past

the time to which he was sentenced; his good time release date was incorrectly calculated and

therefore void; and that he was not released on mandatory release dates. Respondents, Harold

W. Clarke, Director of the Virginia Department of Corrections, Karen Brown, the Virginia

Parole Board Chairman, and Wendy Brown, the Classification Manager, filed a Motion to

Dismiss and Rule 5 Answer, and petitioner has filed responsive materials, pursuant to Roseboro

v. Garrison, 528 F.2d 309 (4th Cir. 1975). Accordingly, this matter is now ripe for disposition

and, for the reasons that follow, the Motion to Dismiss must be granted and the petition

dismissed.

I. Background

Petitioner is challenging the revocation of his parole on August 3, 2015. His claims

involve his prior convictions starting in 1981 and his releases and revocations by the Virginia

Parole Board (VPB). The chronology of events is as follows:

e On December 17, 1981, the Norfolk Circuit Court sentenced petitioner to two years

and six months in prison for grand larceny (offense date June 7, 1981).

e On March 2, 1982, the Newport News Circuit Court sentenced petitioner to two years

and six months in prison for burglary (offense date June 7, 1981) and two years and

six months in prison for grand larceny (offense date June 7, 1981).

e On December 15, 1983, the VPB released petitioner from the Virginia Department of

Corrections (VDOC) on discretionary parole. At that time, he had four years, four

months, and four days left to serve.

e On January 23, 1984, petitioner was arrested for a new offense while on parole. On

April 9, 1984, the Petersburg Circuit Court sentenced petitioner to twelve years in

prison, with seven years suspended, for burglary (offense date January 23, 1984) and

to five years in prison, with four years suspended, for grand larceny (offense date

January 23, 1984). Petitioner had a net sentence to serve of six years.

e On March 18, 1987, petitioner was again released on discretionary parole. At that

time, he had four years, seven months, and twenty-nine days left to serve.

¢ On July 30, 1987, he was arrested for new offenses while on parole.

e On January 27, 1988, the Hampton Circuit Court sentenced petitioner to fifteen years

in prison for armed robbery (offense date July 19, 1987) and two years in prison for

use of a firearm (offense date July 19, 1987).

e On May 19, 1988, the Chesterfield Circuit Court sentenced petitioner to five years in

prison for robbery (offense date July 29, 1987).

¢ On June 14, 1988, the Henrico Circuit Court sentenced petitioner to nine years in

prison for robbery (offense date July 30, 1987).

e On July 6, 1988, the Henrico Circuit Court sentenced the petitioner to seven years and

six months in prison for robbery (offense date July 21, 1987).

e On July 19, 1988, the Henrico Circuit Court sentenced the petitioner to twenty years

in prison, with fifteen years suspended, for robbery (offense date July 25, 1987).

e On October 2, 2013, petitioner was released on mandatory parole from the VDOC.

At that time, the unserved portion of petitioner’s term of imprisonment was twenty-

three years, fifteen months, and forty days.

e On November 4, 2014, petitioner was arrested for a new offense while on parole and

he was returned to VDOC custody.

e On January 29, 2015, the Chesapeake Circuit Court sentenced petitioner to five years

in prison, with two years suspended for grand larceny (offense date March 10, 2014).

e On August 3, 2015, the VPB revoked the unserved portion of petitioner’s terms of

imprisonment — twenty-three years, eight months, and eleven days for the parole

violation. Petitioner received credit for time spent in jail.’

Petitioner filed a habeas petition in the Supreme Court of Virginia on November 6, 2015

challenging the VPB’s August 3, 2015 revocation of his parole. The court dismissed the

petition on May 17, 2016, citing Virginia Code § 8.01-654(A)(2), the state habeas statute of

limitations, found the petition was not timely filed because it had not been filed within one year

of October 2, 2013 — which was when petitioner alleged he had been unlawfully released and his

cause of action accrued. Brown v. Ken Stolle, Record No. 151904. His petition for rehearing

was denied on October 6, 2016.”

II. Petitioner’s Claims

On December 31, 2016, petitioner filed a federal petition for writ of habeas corpus and

has raise the following claims:

1. The Department of Corrections and the Parole Board do not have the

authority to lump petitioner’s sentences together. The Department and the Board

“lump[] all of his sentences for the purpose of awarding and forfeiting earned good time.”

[Dkt. No. 8 at 5}. The revocation of “23 years, 8 mos, and 11 days earned good time”

resulting in a determination that petitioner had “24 years, 4 mos, and 9 days” to serve

violated the Ex Post Facto, Due Process, and Double Jeopardy Clauses. [Id. at 18].

Petitioner had fully satisfied his six sentences from 1988 and should only have had a

' The history of events and sentences are detailed in an affidavit accompanying respondent’s

Brief in Support. [Dkt. No. 18-2 at 2-20]. The information through 1995 is also set forth in a

prior opinion of this court involving petitioner. See Brown v. Virginia Dep’t of Corrections,

886 F. Supp. 531, 532-33 (E.D. Va.) aff'd, 1995 U.S. App. LEXIS 33443, *1 (4th Cir. 1995).

2 On January 19, 2016, petitioner filed a second habeas petition in the Supreme Court of

Virginia challenging his January 29, 2015 conviction in the Chesapeake Circuit Court. Brown

v. Ken Stolle, Record No. 160172. The petition was dismissed on October 25, 2016. On July

5, 2016, petitioner filed a third habeas petition in the Supreme Court of Virginia challenging all

his convictions. Brown v. Clarke, Record No. 161110. The Supreme Court of Virginia

dismissed the claims pursuant to Virginia Code § 8.01-663, which precludes relief based upon a

prior adjudication of a claim or claims absent a change of circumstances. See, e.g., Hawks v.

Cox, 175 S.E.2d 271, 273-74 (Va. 1970). The habeas petitions, however, are not relevant to

petitioner’s federal habeas claims.

remaining sentence for purposes of revocation of “4 years, 8 mos, and 3 days.” [Id.].

2. Petitioner is being held unlawfully in violation of the Ex Post Facto, Due Process,

and Equal Protection Clauses because the Parole Board “retroactively applied a 1994,

Mandatory Parole Release law increasing [the] six month[] mandatory parole supervision

[period] to three years mandatory supervision.” ([Id. at 6-7].

3. Petitioner is unlawfully held in prison in violation of a contractual agreement.

Virginia breached the agreement in violation of the Ex Post Facto, Due Process, and

Equal Protection Clauses because it revoked the 23 years, 8 months, and 11 days earned

good time on October 2, 2013. [Id. at 8]. “Once good time is earned and credited

reducing his sentence [the good time] cannot be forfeited.” [Id. at 27].

4. Petitioner is detained unlawfully in violation of the Ex Post Facto, Due Process,

Equal Protection, and Double Jeopardy Clauses. [Id. at 28]. “Mandatory parole is

unconditional, and the Parole Board has no[] authority to set special conditions, terms on

mandatory parole release.” The Parole Board cannot rely upon Virginia Code §§ 53.1-

136, 53.1-151, and 53.1-165 as authority for its actions because those statutes are

unconstitutional. [Id. at 32].

5. VDOC improperly calculated petitioner’s good time credits resulting in the

miscalculation of his good time release date, rendering his release on October 2, 2013

void. [Id. at 36-38].

6. Petitioner should have been released on mandatory parole from each sentence

imposed rather than one six-month mandatory release on his total term of confinement.

[Id. at 39-40].

7. Petitioner is detained unlawfully in violation of the Ex Post Facto, Due Process,

Equal Protection, and Double Jeopardy Clauses. [Id. at 28]. The policy adopted by the

Parole Board in 1995, retroactively applied to petitioner, resulted in the unlawful

revocation of “23 years, 8 months, and 11 days” of earned good time. _[Id, at 41].

8. Petitioner is detained unlawfully in violation of the Ex Post Facto, Due Process,

Equal Protection, and Double Jeopardy Clauses. [Id. at 46]. The revocation of “23

years, 8 months, and 11 days” of earned good time “triggered” the violation of his rights

against Double Jeopardy, Ex Post Facto, Due Process, and Equal Protection.

9. Petitioner is unlawfully incarcerated in Virginia because of his loss of good time

credits toward early release/parole by the commission of a new offense. The Parole

Board does not have the authority to revoke good time. [Id. at 49-50].

10. The Parole Board’s policy adopted in 1995 was applied to sentences that were

imposed “15 years prior to 1995.” [Id, at 52]. Since the policy was not in effect at the

time of petitioner’s sentences it cannot be applied retroactively to petitioner. [Id. 8 at

52].

III. Exhaustion

Petitioner’s § 2254 petition sets forth ten claims that are often duplicitous, overlapping,

and repetitive. Respondent admits his claims are exhausted. [Dkt. No. 18 at 4].

IV. Statute of Limitations

Respondent asserts that petitioner’s federal habeas petition is untimely, and that the state

habeas petition was dismissed as untimely. [Dkt. No. 18 at 3]. Respondent is correct, and

petitioner has not established any basis for tolling, or excusing the default.

A. Federal Statute of Limitations

A petition for a writ of habeas corpus in federal court must be dismissed if filed later than

one year after (1) the judgment becomes final; (2) any state-created impediment to filing a

petition is removed; (3) the United States Supreme Court recognizes the constitutional right

asserted; or (4) the factual predicate of the claim could have been discovered with due diligence.

28 U.S.C. § 2244(d)(1)(A)-(D). Because petitioner challenges the execution of his sentence

rather than the judgment of conviction, § 2244(d)(1)(D) controls the date on which the limitation

period commences. The limitations period begins to run on the date that petitioner became

aware of, or could have discovered by exercising due diligence, the alleged illegal deprivation of

his constitutional rights by the VPB. See Karim v. Pearson, No. 3:16CV950, 2017 U.S. Dist.

LEXIS 121976, 2017 WL 3300539, at *3-4 (E.D. Va. Aug. 2, 2017), appeal dismissed, 711 F.

App’x 186 (4th Cir. 2018) (Section 2244(d)(1)(D) controls date on which the limitation period

commences when habeas petitioner challenges the execution of a sentence rather than the

judgment of conviction) (citing Childs v. Johnson, 3:09cv793, 2010 U.S. Dist. LEXIS 131058,

2010 WL 5186757, at *3 (E.D. Va. Dec. 10, 2010) (quoting Wade v. Robinson, 327 F.3d 328,

332-33 (4th Cir. 2003))).

All of petitioner’s claims involve or derive from his October 2, 2013 release on

mandatory parole. In the amended § 2254 petition, petitioner asserts that he was forced to

accept mandatory parole even though he had not wanted to be released on October 2, 2013

because the 1994 change in the law “imposed the risk of loss of all accumulated earned good

time.” [Dkt. No. 8 at 20]. Petitioner’s other claims discuss good time calculations in the

1980s and 1990s, [Id. at 35-38], all of which predate the October 2, 2013 date. Petitioner was

also aware of the statutes governing parole that he alleges are unconstitutional, as well as the

VPB policy he asserts is invalid or beyond the scope of the VPB’s authority. His claims 9 and

10 are, essentially, a summary of his prior eight claims. For instance, in claim 9 he notes his

“unconstitutionally incarcerated” claim is predicated on the changes to the parole statutes in

1995. Petitioner admits in claim 1 that he was aware of the “adopted forfeiture policy that was

arbitrarily and retroactively applied to him” on October 2, 2013. [Id. 8 at 20, 49].?_ It is clear

from a review of the amended petition, and the state habeas record, that petitioner knew of the

facts that gave rise to his petition, or through the exercise of due diligence could have discovered

those facts on or prior to October 2, 2013. Absent tolling, petitioner’s habeas corpus petition

was due to be filed no later than October 3, 2014.

Petitioner advanced two arguments in his response to the motion to dismiss that oppose

the statute of limitations defense. First, he contends that he could not have brought his state

3 Petitioner was also on notice that such “an amendment [to the parole process] might well

occur.” Woodley v. Dep’t of Corr., 74 F. Supp. 2d 623, 631 (E.D. Va. 1999) (quoting Dufresne

v. Baer, 744 F.2d 1543, 1548 (11th Cir. 1984)). The policy he refers to was adopted on May 11,

1995. See Brown-el v. Virginia Parole Bd., 948 F. Supp. 558, 561 (E.D. Va. 1996).

habeas corpus petition prior to the VPB’s revocation of his parole on August 3, 2015 — the date

that “triggered the events.” [Dkt. No. 25 at 3]. Petitioner’s good time credits, however, had

already been “spent” when he was released on October 2, 2013. See Brown-El, 948 F. Supp. at

561. As Brown-el stated, “Put another way, petitioner ‘used up’ his good time credits to win

early release on parole. Later, when he violated his parole, the VPB, pursuant to Virginia Code

§ 53.1-165, exercised its discretion to revoke his parole and order him incarcerated for the

unserved portion of the original term of imprisonment.” Id. at 560-61 (citation omitted).

In sum, petitioner was never deprived of his good time credits by the VPB.

To the contrary, he received all the good time credits he was entitled to pursuant

to Virginia Code § 53.1-199 and these credits were then fully “used up” to allow

petitioner’s early release. Petitioner’s good time credits no longer existed at the

time of his early release on parole because they had been “used up,” much like the

money used to purchase a theater ticket is “used up.” To continue this analogy,

when petitioner had violated his parole and, as a consequence, was incarcerated

by the VPB, it is much like the ticket purchaser being ejected from the theater for

misbehavior. The ticket purchaser spent or “used up” his money to gain entry

into the theater. His ejection from the theater for misbehavior in no way

deprived him of the money he paid for the ticket. That money, like petitioner’s

good time credits, had already been spent to buy the right to enter the theater or in

petitioner’s case, the right to early release from prison. Accordingly, petitioner’s

due process claim fails.

Id.* Although petitioner’s claims focus on his “loss of good time,” he, just as the petitioner in

Brown-el, lost nothing. Id. at 561, 562.

To be sure, petitioner’s statement that he was “forced” to accept mandatory parole on

October 2, 2013, [Dkt. No. 8 at 20], refutes his assertion that August 3, 2015 is the operative date

4 Brown’s analysis is supported by the text of the VPB’s August 3, 2015 letter revoking

petitioner’s parole. The letter states that the petitioner’s parole was revoked due to the January

29, 2015 Chesapeake Circuit Court conviction for grand larceny, but it makes no mention of

good time credits. [Dkt. No. 18-1 at 4].

because October 2, 2013 is the genesis and linchpin of the claims in his petition. Indeed, in

response to the motion to dismiss, he stated if he had not accepted mandatory release he would

have been arrested, charged with criminal trespass, and then taken to the local jail. [Dkt. No. 25

at 7]. Thereafter, his parole would have been revoked and “ail of his good time” would have

been “revoked.” [Id.] (emphasis added). His statement is akin to asserting that but for his

release on mandatory parole there would have been no basis for him to have filed his habeas

petition. All of the claims in his petition precede or spring from his mandatory release on

October 2, 2013.

Moreover, in calculating the one-year federal limitations period, a court only excludes the

time during which “properly filed” state collateral proceedings pursued by petitioner were

pending. See 28 U.S.C. § 2244(d)(2). Here, the Supreme Court of Virginia expressly

determined that the habeas petition was barred by the statute of limitations set out in Virginia

Code § 8.01-654(A)(2). Accordingly, the pendency of that petition would not have tolled the

§ 2254(d) limitations period. See Artuz v. Bennett, 531 U.S. 4, 8 (2000) (holding a state

collateral proceeding is not “properly filed” for purposes of tolling the federal limitations period

if it is filed untimely). “When a postconviction petition is untimely under state law, ‘that [is]

the end of the matter’ for purposes of § 2244(d)(2).” Pace v. DiGuglielmo, 544 U.S. 408, 414

(2005). Thus, between October 2, 2013, the date petitioner’s cause of action accrued, and

December 31, 2016, the date he filed his federal petition, over three years passed, making the

instant petition untimely by over two years.°

> Consequently, even if the operative date was August 3, 2015 as petitioner asserts in his

response to the motion to dismiss, his federal petition is still untimely.

Petitioner’s second point in his response to the motion to dismiss admits that October 2,

2013, the day he was “forced” to accept mandatory parole, was the genesis of his claims but

asserts he could not have brought a habeas petition on that date because he was no longer in

custody. [Dkt. No. 25 at 14]. He asserts he had no “injury” on that date until he was outside

of the prison gates and that once outside that he was no longer in custody, which is a necessary

requirement for filing a habeas petition. [Id.]. Petitioner’s “no custody” argument has no

merit. While parole releases an inmate from immediate physical custody the conditions it

imposes that “confine and restrain his freedom” are sufficient to constitute he is in “custody” of

the “Virginia Parole Board within the meaning of the habeas corpus statute ....” Jones v.

Cunningham, 371 U.S. 236, 243 (1963). Virginia has a similar rule. See Escamilla v.

Superintendent, Rappahannock Reg’! Jail, 777 S.E.2d 864, 868 (Va. 2015) (“petitioner who

enjoys physical freedom but remains subject to a sentence not yet fully served, such as a

suspended sentence, supervised parole, or probation, is under detention”) (emphasis added).

The statute of limitations for federal habeas petitions under § 2254 may be tolled for

equitable reasons; however, equitable tolling may be applied only in extraordinary

circumstances. A petitioner seeking to equitably toll the statute of limitations is required to

show “‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary

circumstance” had prevented timely filing. Holland v. Florida, 560 U.S. 631, 645 (2010)

(internal quotation marks and citation omitted). A petitioner asserting equitable tolling “bears a

6 Petitioner’s response does not allege any new facts or legal rules. Accordingly, there is no

basis for statutory tolling. See Whiteside v. United States, 775 F.3d 180, 183-84 (4th Cir. 2014)

(holding factual predicate required for statutory tolling requires discovery of a new fact, but a

legal rule or standard is not a fact).

strong burden to show specific facts” that demonstrate fulfillment of both elements of the test.

Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir. 2008) (quoting Brown v. Barrow, 512 F.3d

1304, 1307 (11th Cir. 2008)). The petitioner generally is obliged to specify the steps he took in

diligently pursuing his federal claim. Spencer v. Sutton, 239 F.3d 626, 630 (4th Cir. 2001). In

addition, the petitioner must “demonstrate a causal relationship between the extraordinary

circumstance on which the claim for equitable tolling rests and the lateness of his filing, a

demonstration that cannot be made if the petitioner, acting with reasonable diligence, could have

filed on time notwithstanding the circumstances.” Valverde v. Stinson, 224 F.3d 129, 134 (2d

Cir. 2000). It is widely recognized that equitable tolling is to be applied only infrequently.

Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003).

The two arguments petitioner asserted in his response to the motion to dismiss each had

no merit, and neither demonstrated diligence. Indeed, the record establishes that after his

release on October 2, 2013, petitioner committed a new offense on March 10, 2014 —a mere five

months after his release on mandatory parole. [Dkt. No. 18-2 at 4]. Petitioner, however,

remained at large until November 4, 2014 when he was arrested. Petitioner was free for over

thirteen months after his release and took no action with regard to his good time credits.

Petitioner’s conduct does not establish diligence, and he has pointed to no extraordinary

circumstance. Accordingly, his federal petition is barred by the statute of limitations.

B. Petitioner's Untimely State Petition

Moreover, the Supreme Court of Virginia found that petitioner’s claims, with respect to

the challenged August 3, 2015 revocation, accrued on October 2, 2013 and that, therefore, the

one-year state habeas statute of limitations began to run on that date. See Booker v. Dir. of the

10

Dep’t of Corr., 727 S,E.2d 650, 651 (Va. 2012) (habeas petition “other than a petition

challenging a criminal conviction or sentence, shall be brought within one year after the cause of

action accrues.”) (quoting Va. Code § 8.01-654). The Supreme Court of Virginia expressly

dismissed the state habeas claim as untimely filed pursuant to the state habeas statute of

limitations, Virginia Code § 8.01-654(A)(2), which constitutes precludes this Court’s review of

his claims.’ See Bennett v. Angelone, 92 F.3d 1336, 1343 (4th Cir. 1996) (“habeas petitioner is

barred from seeking federal review of a claim that was presented to a state court and ‘clearly and

expressly’ denied on the independent, adequate state ground of procedural default.”). Virginia

§ 8.01-654(A)(2) is an adequate and independent bar that precludes federal review of a claim.

Sparrow v. Dir., Dep’t of Corrs, 439 F. Supp. 2d 584, 588 (E.D. Va. 2006) (recognizing Va.

Code § 8.01-654(A)(2) as an independent and adequate bar); Banks v. Clarke, No. 1:12cvl398,

2013 U.S. Dist. LEXIS 6069, 2013 WL 164087, at *2 (E.D. Va. Jan. 15, 2013) (finding Va.

Code § 8.01-654(A)(2) was adequate and independent when applied to a revocation proceeding).

Federal courts may not review barred claims absent a showing of cause and prejudice or a

fundamental miscarriage of justice, such as actual innocence. Harris v. Reed, 489 U.S. 255,

In his Brief in Support, respondent states that the Supreme Court of Virginia dismissed the

habeas petition as untimely, [Dkt. No. 18 at 3], and then appears to argue in the alternative that

the Supreme Court of Virginia only dismissed some of petitioner’s claims as untimely because

that court provided an alternative holding regarding claims that concerned “good conduct credit

and discretionary parole.” Brown v. Ken Stolle, R. 151904 (May 17, 2016 Order). The text of

the order, however, could not have been clearer: “the Court finds that the petition was not filed

within one year after October 2, 2013, when petitioner alleges he was unlawfully released on

mandatory parole and the cause of action accrued. Va. Code § 8.01- 654(A)(2). Accordingly,

the Court is of the opinion that the petition was not timely filed.” Id. Federal courts are bound

by a state court’s determination of a matter of state law. See Toghill v. Clarke, 877 F.3d 547,

559 (2017) (citations omitted). The state habeas petition, like the federal habeas petition,

references October 2, 2013 on several occasion with respect to petitioner’s claim. Brown v.

Ken Stolle, R. No. 151904 at 15, 26, and 40.

11

260 (1989). The existence of cause ordinarily turns upon a showing of (1) a denial of effective

assistance of counsel, (2) a factor external to the defense which impeded compliance with the

state procedural rule, or (3) the novelty of the claim. See Coleman v. Thompson, 501 U.S. 722,

753-54 (1991); Clozza v. Murray, 913 F.2d 1092, 1104 (4th Cir. 1990); Clanton v. Muncy, 845

F.2d 1238, 1241-42 (4th Cir. 1988). A court need not consider the issue of prejudice in the

absence of cause. See Kornahrens v. Evatt, 66 F.3d 1350, 1359 (4th Cir. 1995). In this case

petitioner mentions “injustice,” but to the extent he references the miscarriage of justice

exception, it is “narrow in scope” and is concerned with actual as compared to legal innocence.

See Calderon v. Thompson, 523 U.S. 538, 559 (1998) (citations omitted). “‘To be credible,’ a

claim of actual innocence must be based on reliable evidence not presented at trial. Given the

rarity of such evidence, ‘in virtually every case, the allegation of actual innocence has been

summarily rejected.’” Id. (quoting Schlup v. Delo, 513 U.S. 298, 324 (1995)). The petitioner

has presented no evidence to substantiate his assertion of a miscarriage of justice, and the record

contains none. To the extent he assets his claims support may establish a miscarriage of justice

those claims have no merit.

C. Miscarriage of Justice

Throughout most of petitioner’s claims, he argues that his loss of good time credits was

due to the VPB’s revocation of his mandatory parole, which in his view violated the U.S.

Constitution’s Ex Post Facto Clause. Specifically, he contends that the VPB’s retroactive

application of Virginia Code § 53.1-159 to him violates the Ex Post Facto Clause because it

increased his punishment for the offenses to which he had been sentenced before January 1,

1995, the statute’s effective date. Petitioner’s position is without merit.

12

The Ex Post Facto Clause prohibits laws that retroactively increase the punishment for a

crime that has already been committed. U.S. CONST., ART. I, § 10, cl. 1; Warren v. Baskerville,

233 F.3d 204, 206 (4th Cir. 2000). A law runs afoul of the ex post facto prohibition if it

disadvantages the offender and applies to events occurring before its enactment, thereby altering

the legal consequences of a crime after it was committed. Woodley, 74 F. Supp. 2d at 631

(citing Weaver v. Graham, 450 U.S. 24, 30 (1981)). A policy change that exercises pre-existing

statutory powers, however, without a change in the statutory law itself, does not violate the Ex

Post Facto Clause. United States v. Ellen, 961 F.2d 462, 465 (4th Cir. 1992); Brown-El, 948 F.

Supp. at 561 (VPB’s May 11, 1995 decision to exercise its discretionary authority pursuant to

Va. Code §§ 53.1-159 - 165 to require a parole violator to serve entire unserved portion of

sentence did not violate ex post facto prohibition); see also Portley v. Grossman, 444 U.S. 1311,

1313 (1980) (Rehnquist, J., circuit justice; motion for stay) (ex post facto prohibition does not

apply to a “change in guidelines assisting [a government agency] in the exercise of its

discretion.”).

In this case, petitioner’s punishment has not been increased, since the VPB has not

incarcerated him for longer than the full term of his original sentences. The Fourth Circuit has

explicitly rejected the ex post facto challenge petitioner presents, holding that the VPB possessed

the authority to revoke good-time credits under Virginia Code § 53.1-165 before the 1994

amendments to Virginia Code § 53.1-159, and that the 1995 policy change did not violate the Ex

Post Facto Clause because it was merely a change in a longstanding administrative policy.

Warren, 233 F.3d at 207.

8 In rejecting the Ex Post Facto argument in Warren, the Fourth Circuit noted the Supreme

13

Petitioner’s assertion of a “due process” violation also has no merit. The Due Process

Clause of the Fourteenth Amendment provides that no state shall “deprive any person of life,

liberty, or property, without due process of law.” U.S. Const. amend. XIV. To succeed on his

due process claim, petitioner must demonstrate (1) that he has a protected liberty interest within

the meaning of the Fourteenth Amendment and (2) that the VPB denied him the procedural

process he was due. See Brown-El, 948 F. Supp. at 560. While a Virginia inmate has a liberty

interest in the opportunity to earn good-time credits while incarcerated, petitioner was not denied

that interest because he received the full benefit of his earned good-time credits through his early

release. Id. at 560-61. Petitioner effectively “used up” his good-time credits to obtain his

early release, and he was not entitled to the return of these credits upon his reincarceration for

violating conditions of his parole. Id, at 561.

Upon determining that a parolee has violated the terms of his or her parole, Virginia Code

§ 53.1-165 provides that the VPB, “‘in its discretion, may revoke the parole and order the

reincarceration of the prisoner for the unserved portion of the term of imprisonment originally

imposed upon him.” Additionally,

Court had recognized

the Ex Post Facto Clause should not be used for “‘the micromanagement of an

endless array of legislative adjustments to parole and sentencing procedures.’ . . .

The States must have due flexibility in formulating parole procedures and

addressing problems associated with confinement and release.” Garner v. Jones,

529 U.S. 244, 252 (2000) (quoting California Dept. of Corrections v. Morales,

514 U.S. 499, 508 (1995)). In this case, the Virginia Parole Board made a policy

decision that was within the parameters of existing state law. If the States are to

have any freedom in developing optimal parole systems, they must be able to

make policy adjustments without raising the specter of constitutional litigation.

See Garner, 529 U.S. at 252; Roller v. Gunn, 107 F.3d 227, 237 (4th Cir. 1997).

Warren, 233 F.3d at 208.

14

[iJn 1994, the Virginia legislature amended § 53.1-159 to give the Parole Board

authority to forfeit a mandatory parole violator’s good time credits. The

amended statute provides that prisoners who have their parole revoked may have

“to serve the full portion of the term imposed by the sentencing court which was

unexpired when the prisoner was released on parole.” Va. Code Ann. § 53.1-

159 (Michie 1998). In 1995, the Parole Board adopted a new policy that

required all mandatory parole violators to serve all of their original sentences

without the benefit of their accumulated good time credits.

Warren, 233 F.3d at 206. Here, petitioner violated the terms of his parole by committing a new

crime. Thus, the VPB properly exercised its statutory authority to reincarcerate him for the

entire unserved portion of his sentence, without the benefit of any previously accrued good time

credits. Id. at 207 (quoting Va. Code § 53.1-165(A)). Petitioner has not been deprived of

anything and knew on October 2, 2013 that if he violated his parole he risked losing the benefit

of the good time credits that had advanced his mandatory release date. [Dkt. No. 8 at 20].

Petitioner’s assertion hé was denied “equal protection” is devoid of a factual basis.

When alleging an equal protection violation, a petitioner must make a threshold showing that he

and the comparator inmate were treated differently and were similarly situated. See Reffitt v.

Nixon, 917 F. Supp. 409, 414 (E.D. Va.), affid mem., No. 96-6808, 1997 U.S. App. LEXIS

19887, 1997 WL 428600 (4th Cir. July 31, 1997). The Equal Protection Clause of the

Fourteenth Amendment protects against arbitrary classifications by state actors, ensuring that all

people similarly situated will be treated the same. U.S. CONST. AMEND. XIV. To succeed on

an equal protection claim, petitioner must show that (1) he was treated differently from others;

(2) who were similarly situated; and (3) this unequal treatment was the result of intentional or

purposeful discrimination. Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001); Blagman

v. White, 112 F. Supp. 2d 534, 538 (E.D. Va. 2000). Petitioner’s allegations fall far short of

such a threshold showing.

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The release of a prisoner like petitioner on mandatory parole is based solely on a time

calculation. Virginia Code § 53.1-159 provides prisoners are to be released six months prior to

their final release date; the suitability of the prisoner for such release plays no part in such a

determination.” Only persons revoked while on mandatory parole, therefore, are similarly

situated. Nowhere does he allege that he was similarly situated to another individual and

treated differently, or that the VPB intentionally discriminated against him in revoking his

parole. See Simpson v. Welch, 900 F.2d 33, 35 (4th Cir. 1990).

Like his other assertions of a constitutional violation, petitioner’s double jeopardy

argument has no merit and was rejected in Brown-El.

[P]etitioner claims that his constitutional right against double jeopardy was

violated when the VPB revoked both his good time credits and parole as

punishment for his parole violation. It is settled that parole revocation is not an

“essentially criminal” proceeding and therefore, is not protected by the double

jeopardy clause. Breed v. Jones, 421 U.S. 519, 528-29 (1975) (citing Helvering

v. Mitchell, 303 U.S. 391, 398-99 (1938)). Furthermore, this claim fails as this

is plainly not a case where there is double punishment for a single offense.

Breed, 421 U.S. at 519. The offense was violation of parole and the punishment

was incarceration for a period of time equal to the unserved portion of petitioner’s

sentence. As previously shown, petitioner’s good time credits were not revoked;

they were “used up” or consumed. Accordingly, petitioner’s double jeopardy

claim fails.

Brown-El, 948 F. Supp. at 562.

Lastly, petitioner asserts two matters of state law within his claims that have no merit and

do not implicate petitioner’s constitutional rights. First, that the VPB violated state law by

“lumping” his sentences together and not releasing him on mandatory parole from each sentence.

Section 53.1-159 does provide that if the VPB receives information that it determines amounts

to reasonable cause that an inmate due to be released on mandatory parole “‘poses a clear and

present danger to the life of any person,” the VPB can delay the prisoner’s release for up to six

months to allow for investigation of the information.

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Virginia Code § 53.1-159 states, in pertinent part, that “Every person who is sentenced and

committed under the laws of the Commonwealth to the Department of Corrections or as provided

for in §§ 19.2-308.1, 53.1-152 or § 53.1-153 shall be released on parole by the Virginia Parole

Board six months prior to his date of final release.” Id. (emphasis added). The plain language

of the statute refutes his interpretation that mandatory release is affixed to each sentence imposed

by acourt. See Warren, 233 F.3d at 207; see also Brown, 886 F. Supp. at 534 (holding no

constitutional right that requires a state allow an inmate to serve his sentences in the order of his

preference).

Petitioner also claimed a breach of contract by the VPB regarding his loss of good time

credits. At best, this claim is duplicitous and based upon an alleged contract between himself

and the VPB — a matter of state law. Federal courts, however, do not decide matters of state

law in habeas. See Wright v. Angelone, 151 F.3d 151, 158 (4th Cir. 1998).

V. Conclusion

In sum, the petitioner has not established a miscarriage of justice, and he has presented no

argument or evidence to establish cause and prejudice to allow the Court to review his claims.

The petition is barred as untimely under the federal statute of limitations, and the dismissal of his

state petition pursuant to an adequate and independent state ground precludes federal review.

For the foregoing reasons, respondent’s Motion to Dismiss must be granted, and this petition

must be dismissed with prejudice. An appropriate Order and judgment shall issue.

An appeal may not be taken from the final order in a § 2254 proceeding unless a judge

issues a certificate of appealability (“COA”). 28 U.S.C. § 2253(c)(1)(A). A COA will not

issue unless a prisoner makes “a substantial showing of the denial of a constitutional right.” 28

U.S.C. § 2253(c)(2). This requirement is satisfied only when “reasonable jurists could debate

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whether (or, for that matter, agree that) the petition should have been resolved in a different

manner or that the issues presented were ‘adequate to deserve encouragement to proceed

further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S.

880, 893 (1983)). Petitioner fails to meet this standard. Accordingly, a certificate of

appealability will be DENIED.

. t

Entered this 14Y—day of _ Manet 2020.

Cbaice. ry hkl

United States District Judge

Alexandria, Virginia

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