Vann v. Angelone

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ANTHONY LEON VANN,

Petitioner-Appellant,

v.

No. 95-6471

RONALD ANGELONE, Director,

Virginia Department of Corrections,

Respondent-Appellee.

Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond.

James R. Spencer, District Judge.

(CA-94-852-R)

Argued: November 1, 1995

Decided: January 9, 1996

Before WILKINSON, LUTTIG, and WILLIAMS,

Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Judge Wilkinson wrote the opinion,

in which Judge Luttig and Judge Williams joined.

_________________________________________________________________

COUNSEL

ARGUED: Gerald Thomas Zerkin, GERALD T. ZERKIN & ASSO-

CIATES, Richmond, Virginia, for Appellant. Mary Elizabeth Shea,

Assistant Attorney General, OFFICE OF THE ATTORNEY GEN-

ERAL, Criminal Law Division, Richmond, Virginia, for Appellee.

ON BRIEF: Melanie A. Hopper, GERALD T. ZERKIN & ASSO-

CIATES, Richmond, Virginia, for Appellant. James S. Gilmore, III,

Attorney General of Virginia, OFFICE OF THE ATTORNEY GEN-

ERAL, Criminal Law Division, Richmond, Virginia, for Appellee.

_________________________________________________________________

OPINION

WILKINSON, Circuit Judge:

Anthony Leon Vann petitions for habeas corpus relief on the

ground that the Virginia Department of Corrections ("DOC") denied

him due process by arbitrarily finding him ineligible for parole under

Virginia Code, § 53.1-151(B1). This section of the Virginia Code pro-

hibits parole eligibility for individuals convicted of three separate

offenses of murder, rape, or armed robbery, when such offenses are

not "part of a common act, transaction or scheme." While Vann con-

tends that two of his robberies were "part of a common act, transac-

tion or scheme," the DOC found otherwise. We hold that the DOC

decision fully satisfied the requirements of the due process clause. In

so holding, we affirm the judgment of the district court.

I.

On February 28, 1974, Anthony Leon Vann and an accomplice

robbed Victor Vogel at gunpoint of $100, two holsters, and clothing

while Vogel was at work in his Portsmouth, Virginia store. Approxi-

mately thirty minutes later, Vann and two companions entered a rail-

yard, where they robbed railroad detective Horace Wishart of his

revolver at gunpoint. In July of 1974, Vann pled guilty to two counts

of robbery and was sentenced to ten years on the first count and five

years on the second.

Vann was paroled on October 28, 1977, only to be reincarcerated

for a parole violation on September 14, 1979. He was again paroled

on November 9, 1981. In 1983, he was charged with robbery, abduc-

tion, and the use of a firearm in the commission of a felony. On July

1, 1983, Vann pled guilty to these charges. He received consecutive

sentences of fifty years for the robbery, ten years for the abduction,

and two years for the weapons charge.

2

Less than ten years into his sixty-two-year sentence, on February

22, 1993, Vann was tentatively approved for parole, provided that he

was legally eligible. Pursuant to a sentence audit performed on all

DOC prisoners before their release, it was discovered that Vann was

ineligible for parole because he had committed three armed robberies

--the two in 1974 and the one in 1983. The Virginia Code prohibits

inmates from receiving parole if they have committed three such

offenses, provided that the offenses are not "part of a common act,

transaction or scheme." Va. Code § 53.1-151(B1).

The DOC found that the two robberies Vann committed on the

same evening in 1974 were not part of "a common act, transaction or

scheme." The Virginia Parole Board then informed Vann of his ineli-

gibility for parole by letter of August 25, 1993, citing Vann's "addi-

tional sentence(s)" as the reason for his ineligibility. Vann objected

to the DOC's finding under § 53.1-151(B1), contending that the

DOC's decision was "standardless, arbitrary and contrary to law."

Accordingly, Vann advanced habeas corpus claims, first to the Ports-

mouth Circuit Court, which found his claims to be meritless, then to

the Virginia Supreme Court, which denied his appeal, and finally to

the federal district court, which also denied relief. Vann now appeals

the decision of the district court.

II.

Vann appears before us with a heavy burden. It is difficult to imag-

ine a context more deserving of federal deference than state parole

decisions. "There is no constitutional or inherent right of a convicted

person to be conditionally released before the expiration of a valid

sentence." Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7

(1979). This is because "given a valid conviction, the criminal defen-

dant has been constitutionally deprived of his liberty." Id., quoting

Meachum v. Fano, 427 U.S. 215, 224 (1976). The absence of a consti-

tutional right to parole means that a state has no duty to establish a

system of parole, id., and if it chooses to do so, federal courts should

allow a state's parole authorities "a wide range for experimentation

and the exercise of discretion." Franklin v. Shields, 569 F.2d 784, 800

(4th Cir. 1978) (en banc), cert. denied, 435 U.S. 1003 (1978). "More-

over, to insure that the state-created parole system serves the public-

interest purposes of rehabilitation and deterrence, the state may be

3

specific or general in defining the conditions for release and the fac-

tors that should be considered by the parole authority." Greenholtz,

442 U.S. at 7-8.

Most parole decisions involve a considerable degree of discretion.

Hence, parole authorities must investigate and weigh"numerous fac-

tors including [the inmate's] history, mental and physical condition,

attitude, and compatibility with the `interests of society.'" Gaston v.

Taylor, 946 F.2d 340, 344 (4th Cir. 1991) (en banc). The cumulative

impact of this experience endows state authorities with the expertise

to predict whether a given inmate will continue to prey on society if

released. Parole decisions involve more than the exercise of state

expertise, however. They are an integral part of the larger interest of

states in administering their own system of corrections. Given such

compelling reasons, it is no surprise that federal courts have generally

refrained from meddling in state parole proceedings.

The above principles apply both to state decisions with respect to

the actual release of an inmate on parole and to state decisions with

respect to an inmate's initial eligibility for parole consideration. With

no constitutional right to parole per se, federal courts recognize due

process rights in an inmate only where the state has created "a legiti-

mate claim of entitlement" to some aspect of parole. Id., quoting

Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 460

(1989). Such a liberty interest, however, is not created through the

unilateral need, desire, hope, or expectation of a petitioner that the

state will confer the benefit sought. Id. Because parole consideration

and parole itself typically hinge on the discretionary decisions of

parole authorities, inmates generally possess no entitlement, but only

a desire, that a parole board will decide in their favor.

Even where this court has found that a parole statute establishes a

liberty interest, we have held that inmates are entitled to no more than

minimal procedure. At most, we have held that parole authorities

must "furnish to the prisoner a statement of its reasons for denial of

parole." Franklin, 569 F.2d at 784; see also Bloodgood v. Garraghty,

783 F.2d 470, 473 (4th Cir. 1986). In sum, whether or not a liberty

interest exists, federal courts must defer to state agencies applying

state laws and thus their oversight of state parole proceedings has

been extremely limited.

4

III.

At issue here is the judgment of the Virginia DOC that, by virtue

of his three armed robberies, Vann was ineligible for parole under

§ 53.1-151(B1) of the Virginia Code:

Any person convicted of three separate felony offenses of

(i) murder, (ii) rape or (iii) robbery by the presenting of

firearms or other deadly weapon, or any combination of

[these] offenses . . . when such offenses were not part of a

common act, transaction or scheme shall not be eligible for

parole.

Va. Code § 53.1-151(B1). Appellant Vann objects to this decision on

several grounds. He claims that he possesses a liberty interest in

parole eligibility and that his due process rights were violated

because: (1) parole eligibility determinations are arbitrary absent fur-

ther constraint on the DOC's discretion to determine what is a "com-

mon act, transaction or scheme"; and (2) his two February 28, 1974

robberies were part of a "common act, transaction or scheme." In

short, appellant invites us to construe the meaning of § 53.1-151(B1)

of the Virginia Code as well as to judge the adequacy of the DOC's

decision.

We reject petitioner's attempt to draw this court into the merits of

either the state's parole statute or its individual parole decisions. To

accept the invitation to review Vann's parole eligibility determination

would require us to second guess both the Virginia DOC and the Vir-

ginia General Assembly. We would, for example, have to assess the

facts and circumstances surrounding Vann's robberies, evaluate the

DOC's reasons for denying Vann parole, compare the decision in

Vann's case with others under § 53.1-151(B1), and develop federal

decisional law on the definition of "common act, transaction or

scheme," a provision in a Virginia statute. Such an exercise in state

statutory refinement would compromise important principles of feder-

alism, undermine state parole authorities, and install the federal judi-

ciary as the final arbiter in yet one more area of state law. Whether

to leave the decision of what constitutes a "common act, transaction

or scheme" to the DOC's discretion, or to further refine

§ 53.1-151(B1) in a manner akin to what the federal government has

5

done in its Sentencing Guidelines, see, e.g. United States Sentencing

Commission, Guidelines Manual, § 4A1.2, comment. (n.3), is entirely

Virginia's prerogative. The Constitution simply does not speak to the

generality or specificity of the standards for parole eligibility adopted

by a state. See Greenholtz, 442 U.S. at 7-8.

The DOC is therefore not obliged to articulate detailed standards

for parole eligibility under the statute, a process the DOC contends

would deprive the statutory scheme of its essential flexibility. The

application of this statute inescapably involves the exercise of official

discretion. In fact, the statute itself permits the Parole Board "in its

discretion" to review a "determination" by the DOC of parole ineligi-

bility. Va. Code § 53.1-151(B1). These discretionary features make it

doubtful that the statute confers upon petitioner any Fourteenth

Amendment liberty interest. See Gaston, 946 F.2d at 344 ("a fear or

hope about a future discretionary decision is too speculative to give

him a liberty interest"). Assuming, arguendo, that a liberty interest

does exist, the procedures mandated by the due process clause were

satisfied. Here, Vann received the following letter from the Virginia

Parole Board on August 25, 1993: "As a result of an additional sen-

tence(s) and recomputation of your total sentence, however, you are

not eligible for parole consideration at this time . . . ." This statement

sufficed to communicate to Vann that it was his prior criminal activity

that precluded his present eligibility for parole. See Bloodgood, 783

F.2d at 473; Franklin, 569 F.2d at 801.

The reasons for the parole determination in Vann's case are, of

course, self-evident. Virginia denies parole eligibility to someone who

has committed three or more armed robberies, rapes, and/or murders.

The DOC concluded that Vann's two armed robberies on February

28, 1974--which victimized both a store owner and a railroad detec-

tive, were separated in time by approximately thirty minutes, occurred

at a store and a railyard, and were perpetrated for distinct motives--

constituted separate felony offenses for the purposes of

§ 53.1-151(B1). Whether a federal court would have reached the same

conclusion in the first instance is beside the point. The point is that

Virginia reached that conclusion, and its decision must be sustained.

6

IV.

The judgment of the district court is affirmed.

AFFIRMED

7