Waddell v. Department of Correction

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LARRY WADDELL, 

Petitioner-Appellant,

v.

DEPARTMENT OF CORRECTION;  No. 11-7234

REUBEN FRANKLIN YOUNG; HERBERT

JACKSON,

Respondents-Appellees.



Appeal from the United States District Court

for the Western District of North Carolina, at Charlotte.

Max O. Cogburn, Jr., District Judge.

(3:10-cv-00532-MOC-DSC)

Argued: March 23, 2012

Decided: May 25, 2012

Before NIEMEYER, KING, and AGEE, Circuit Judges.

Affirmed by published opinion. Judge King wrote the opin-

ion, in which Judge Niemeyer and Judge Agee joined.

2 WADDELL v. DEPARTMENT OF CORRECTION

COUNSEL

ARGUED: Sarah Jessica Farber, NORTH CAROLINA

PRISONER LEGAL SERVICES, INC., Raleigh, North Caro-

lina, for Appellant. Mary Carla Hollis, Clarence Joe Del-

Forge, III, NORTH CAROLINA DEPARTMENT OF

JUSTICE, Raleigh, North Carolina, for Appellees. ON

BRIEF: Vernetta Alston, Mary S. Pollard, NORTH CARO-

LINA PRISONER LEGAL SERVICES, INC., Raleigh, North

Carolina, for Appellant. Roy Cooper, Attorney General,

Raleigh, North Carolina for Appellees.

OPINION

KING, Circuit Judge:

In 1975, petitioner Larry Waddell was convicted of first-

degree murder in the Superior Court of Mecklenburg County,

North Carolina, and sentenced to be executed. His death sen-

tence was vacated by the Supreme Court of the United States

in 1976, and later that year Waddell was resentenced to life

imprisonment. In 2010, Waddell sought habeas corpus relief

in the Western District of North Carolina pursuant to 28

U.S.C. § 2254, maintaining that the North Carolina Depart-

ment of Correction (the "DOC") had improperly excluded

"good time" credits in calculating his unconditional release

date. As a result, he contends that his continuing detention by

the State violates the due process and ex post facto clauses of

the Constitution. On September 6, 2011, the district court

ruled that Waddell’s § 2254 petition was time-barred, and, in

the alternative, denied the petition on its merits. See Waddell

v. Keller, No. 3:10-cv-00532, slip op. at 24-25 (W.D.N.C.

Sept. 6, 2011) (the "Opinion").1 Waddell appeals from the

judgment, and, as explained below, we affirm.

1

In his habeas corpus petition, Waddell alleged that the district court

possessed authority to grant relief under 28 U.S.C. § 2254 and

§ 2241(c)(3). The court’s Opinion addressed § 2254 only, and Waddell

has abandoned any claims for relief under § 2241. The Opinion is found

at J.A. 889. (Citations herein to "J.A. ___" refer to the contents of the Joint

Appendix filed by the parties in this appeal.)

WADDELL v. DEPARTMENT OF CORRECTION 3

I.

On October 22, 2010, Waddell filed his § 2254 petition in

the Western District of North Carolina. Waddell’s constitu-

tional claims arise from the application of a North Carolina

statute that was enacted and then swiftly repealed more than

thirty-five years ago. Analogous claims have been recently lit-

igated in the North Carolina courts by similarly situated state

prisoners, resulting in relevant state court decisions. In order

to understand the contours of Waddell’s claims, we review the

procedural background of his life sentence and the pertinent

North Carolina precedents.

A.

Following Waddell’s March 1975 conviction of first-degree

murder, he was sentenced to be executed pursuant to a 1974

revision to North Carolina’s murder statute that made the

death penalty the mandatory sentence for a first-degree

offense. In July 1976, however, the Supreme Court of the

United States ruled that the statute, as revised, contravened

the Eighth and Fourteenth Amendments. See Woodson v.

North Carolina, 428 U.S. 280, 305 (1976). Pursuant to Wood-

son, the Court then granted Waddell’s request for certiorari

and held that "[t]he imposition and carrying out of the death

penalty in [Waddell’s] case constitutes cruel and unusual pun-

ishment." Waddell v. North Carolina, 428 U.S. 904 (1976).

Waddell’s death sentence was thus vacated and his case

remanded to the courts of North Carolina for further sentenc-

ing proceedings.

On remand, Waddell was resentenced to life imprisonment,

and that sentence is challenged in these proceedings. When

Waddell’s life sentence was imposed in 1976, the pertinent

state statute provided that "[a] sentence of life imprisonment

shall be considered as a sentence of imprisonment for a term

of 80 years in the State’s prison." N.C. Gen. Stat. § 14-2

(1974) (the "eighty-year rule"). The eighty-year rule was

4 WADDELL v. DEPARTMENT OF CORRECTION

enacted in 1974, but was repealed in 1977. Waddell thus

counts himself among a small group of North Carolina prison-

ers who were sentenced to life in prison during the three-year

existence of the eighty-year rule — between April 8, 1974,

and June 30, 1977.

B.

1.

At all relevant times, DOC policy rewarded certain prison-

ers with sentencing credits — what we refer to in the aggre-

gate as "good time" credits — on the bases of good behavior

and productivity.2 Notably, the DOC has historically recorded

the "release date" of a life sentence prisoner as, for example,

"99999999," "99999998," "LIFE," or by another term that

does not signify a release date. Such release date entries have

never been adjusted to reflect an application of good time

2

North Carolina General Statute § 148-11 obligates the DOC to "adopt

rules for the government of the State prison system." Section 148-13

authorizes the prison system to reward prisoners with allowances of sev-

eral categories of sentencing credits. The relevant DOC regulations estab-

lished the rules and methods for computing such credits, in part, as

follows:

• "Good time" is credit awarded to inmates at the rate of one

day deducted from their prison term for each day spent in cus-

tody without a violation of inmate conduct rules;

• "Gain time" and "earned time" are credits awarded to inmates

for their participation in full time work and/or program activi-

ties; and

• "Meritorious time" is credit awarded to inmates for their

exemplary acts; for working under emergency conditions,

working overtime, working in inclement weather; and for

achievements in apprenticeship training, education, and other

type programs.

See 5 N.C. Admin. Code 2B.0110-.0114 (repealed); J.A. 102-11. The dis-

tinctions between these types of credits, which we collectively term "good

time" credits, is not relevant to Waddell’s constitutional claims.

WADDELL v. DEPARTMENT OF CORRECTION 5

credits as they were earned. Although North Carolina prison-

ers serving life sentences accrued good time credits, the DOC

applied those credits only to the calculation of parole eligibil-

ity and custody grade. The DOC’s monitoring of good time

credits also ensured that such credits could be applied to a

prisoner’s release date if the Governor commuted a life sen-

tence to a term of years.

In 2005, North Carolina prisoner Bobby Bowden, one of

the eighty-year rule group (having been convicted of first-

degree murder and sentenced to life in 1976), filed a request

for post-conviction relief in the Superior Court of Cumberland

County. Bowden contended that, when his good time credits

were properly taken into account under the eighty-year rule,

he had completed his life sentence. His request for relief was

denied by the superior court on August 27, 2007. In 2008, the

North Carolina Court of Appeals, treating Bowden’s request

as a motion for appropriate relief (an "MAR"), reversed the

superior court and ruled that the eighty-year rule requires a

life sentence to be treated as an eighty-year sentence for all

purposes. See State v. Bowden, 668 S.E.2d 107, 109-10 (N.C.

Ct. App. 2008).3 The court of appeals then remanded Bow-

den’s case "for a hearing to determine how many sentence

reduction credits defendant is eligible to receive and how

those credits are to be applied." Id. at 110. The Supreme

Court of North Carolina initially granted the State’s petition

for certiorari on the court of appeals’s decision. See State v.

Bowden, 677 S.E.2d 161 (N.C. 2009). On October 9, 2009,

however, the supreme court determined that certiorari had

been improvidently awarded, and the State’s appeal was dis-

missed. See State v. Bowden, 683 S.E.2d 208 (N.C. 2009).

3

A defendant convicted of a crime in North Carolina is entitled to seek

post-conviction relief by way of an MAR. See N.C. Gen. Stat. § 15A-

1401. An MAR is not identical to habeas corpus, but it provides an avenue

to obtain relief from "errors committed in criminal trials and proceedings."

Id.

6 WADDELL v. DEPARTMENT OF CORRECTION

Pursuant to Bowden, the DOC calculated the tentative

release dates resulting from good time credits of North Caro-

lina prisoners who had been sentenced to life for murder and

rape offenses committed during the viable period of the

eighty-year rule. Those release dates were necessarily tenta-

tive, in that the DOC was yet unsure whether good time cred-

its were legally applicable to eighty-year rule sentences.

According to former DOC Secretary Alvin Keller — testify-

ing in a related case — the release date calculations were

made on the possibility that the DOC would be obliged to

release certain of those prisoners pursuant to the court of

appeals’s Bowden mandate, which was to issue on October

29, 2009 (twenty days after the supreme court declined

review). See J.A. 282-84.4 In so doing, the DOC identified

twenty prisoners (the "qualified prisoners") whose tentative

release dates had been satisfied when the Bowden mandate

issued. Thus, while also pursuing its legal alternatives with

respect to Bowden, the DOC prepared for possible release of

the qualified prisoners on October 29, 2009.

Petitioner Waddell was not among the twenty qualified

prisoners. When his good time credits were tentatively calcu-

lated under the eighty-year rule, Waddell received a potential

release date of January 22, 2010. See J.A. 119.

2.

Prior to October 29, 2009, the Governor urged the DOC not

to authorize release of the qualified prisoners, and informed

the public that those prisoners would not be released until

"new legal issues have been resolved by the courts." J.A. 143.

The qualified prisoners were not released and, on November

4

Secretary Keller was a named respondent in the district court proceed-

ings. Reuben Young, as Secretary of the Department of Public Safety, has

since been substituted for Keller because of a DOC reorganization. For

continuity and clarity, we refer to the parties as they existed in the district

court.

WADDELL v. DEPARTMENT OF CORRECTION 7

10, 2009, the Secretary of Correction directed that any pris-

oner sentenced to life under the eighty-year rule would be

given an unconditional release date that was eighty years from

his date of conviction, without taking into account any good

time credits. As a result, Waddell received a release date of

October 31, 2054.

Following the Secretary’s decision, several of the qualified

prisoners initiated state post-conviction proceedings contest-

ing their newly calculated release dates, contending that their

good time credits had not been properly applied. Among the

qualified prisoners who pursued such relief were Alford Jones

(sentenced to life in 1976), Faye Brown (sentenced to life in

1977), and Wilbur William Folston, Jr. (sentenced to life in

1977). The courts handling those proceedings conducted evi-

dentiary hearings in late 2009. Jones and Brown were granted

relief by their respective superior courts, which ordered, pur-

suant to Bowden, that they be unconditionally released. Fols-

ton, however, was denied relief by the superior court. These

conflicting rulings were reviewed in 2010 by the Supreme

Court of North Carolina.

C.

1.

On August 27, 2010, the Supreme Court of North Carolina

resolved the conflicting superior court rulings, upholding the

DOC’s decision on the application of good time credits for the

qualified prisoners. See Jones v. Keller, 698 S.E.2d 49 (N.C.

2010). The Jones decision relied on North Carolina General

Statute § 148-11, which delegates the administration of prison

sentences to the DOC, and renders the rules and regulations

regarding good time credits "‘strictly administrative and not

judicial.’" Id. at 53-54 (quoting State v. Garris, 144 S.E.2d

901, 902 (N.C. 1965)). Relying on the doctrine of separation

of powers, the Jones court recognized that it "has long held

that when an agency of another branch of government is

8 WADDELL v. DEPARTMENT OF CORRECTION

authorized to exercise regulatory power over the administra-

tion of prison sentences, we will defer to that authority to the

extent the delegation is constitutional." Jones, 698 S.E.2d at

53. The court further observed that "as a general rule, the judi-

ciary will not review the DOC’s grant, forfeiture, or applica-

tion of credits against a prisoner’s sentence." Id. at 54. The

Jones court thus ruled that the DOC’s decision on how to

apply good time credits was within its statutory authority,

concluding that, "implicit in DOC’s power to allow time for

good behavior under section 148-13 is authority to determine

the purposes for which that time is allowed." Id. at 55.

2.

Turning to whether the DOC’s interpretation and imple-

mentation of its regulations presented constitutional problems,

North Carolina’s high court addressed Jones’s contentions of

due process, equal protection, and ex post facto violations.

The Jones decision first emphasized that prisoner benefits

arise from state-created liberty interests through the enact-

ment of statutes. See 698 S.E.2d at 55. Because the North

Carolina legislature had created a right to good time credits,

that right is protected under the Fourteenth Amendment. Id.

at 55-56. The State is entitled, however, "within reasonable

and constitutional limits, [to] control the contours of the lib-

erty interest it creates." Id. at 56. The court observed that

Jones had received his good time credits — which had been

used to move him to the "least restrictive custody grade" and

to calculate his parole eligibility date. Id. at 54.

Jones’s argument for relief in his state post-conviction pro-

ceedings, however, was that good time credits should also

have been applied to calculate his unconditional release date,

thus substantially reducing his eighty-year rule sentence. See

Jones, 698 S.E.2d at 56. The Jones court rejected that conten-

tion, ruling that Jones’s liberty interest in having such credits

utilized for calculating an unconditional release date is a de

minimus one. Id. Relying on decisions of the Supreme Court

WADDELL v. DEPARTMENT OF CORRECTION 9

of the United States regarding the liberty interests of prison-

ers, the state supreme court decided that the administration of

sentence reduction credits implicates a lesser liberty interest

than policies and regulations designed to restrict or revoke an

individual’s liberty, such as parole revocation. Id. (citing

Sandin v. Conner, 515 U.S. 472 (1995); Hewitt v. Helms, 459

U.S. 460 (1983), abrogated in part on other grounds by

Sandin; Wolff v. McDonnell, 418 U.S. 539 (1974)). The Jones

court explained that

Jones’s liberty interest in good time [credits] is lim-

ited. Thus, his liberty interest, if any, in having these

credits used for the purpose of calculating his date of

unconditional release is de minimis, particularly

when contrasted with the State’s compelling interest

in keeping inmates incarcerated until they can be

released with safety to themselves and to the public.

Id. North Carolina’s compelling interest in ensuring public

safety, the Jones decision explained, outweighed Jones’s de

minimis interest in applying his good time credits to the estab-

lishment of his unconditional release date. Id.

With specific relevance to the issue in this appeal, the

Jones decision observed that "[n]o regulation explicitly pro-

vides that credits are to be used to calculate an unconditional

release date, and DOC asserts that it never considered that

these regulations applied to Jones or other inmates similarly

situated for the purpose of calculating an unconditional

release date." 698 S.E.2d at 57. Thus, the court determined

that good time credits had been applied properly to establish

Jones’s parole date, and concluded that,

[i]n light of the compelling State interest in main-

taining public safety, . . . these regulations do not

require that DOC apply time credits for purposes of

unconditional release to those who committed first-

degree murder during the 8 April 1974 through 30

10 WADDELL v. DEPARTMENT OF CORRECTION

June 1978 time frame and were sentenced to life

imprisonment.

Id.

The Jones court then rejected Jones’s ex post facto consti-

tutional contention. In so ruling, it explained that the state

constitution bars the adoption of retrospective laws that alter

the punishment of — or punish to a greater degree — a crime

that was committed before the law was enacted. Jones, 698

S.E.2d at 57. Because Jones had failed to identify any legisla-

tion or regulations that had altered his award of good time

credits, the court determined that he had not suffered an ex

post facto injury. Id.5

3.

Having resolved Jones’s constitutional contentions, the

Supreme Court of North Carolina reversed the superior

court’s award of relief and held that Jones was legally incar-

cerated in the state prison system. Jones, 698 S.E.2d at 58.

Thereafter, on August 27, 2010, the supreme court also

reversed the superior court’s award of relief to Faye Brown,

"[f]or the reasons stated in [Jones.]" Brown v. N.C. Dep’t of

Corr., 697 S.E.2d 327 (N.C. 2010).

5

Finally, addressing Jones’s contention that the DOC’s failure to apply

his good time credits to the calculation of his unconditional release date

contravenes his federally protected equal protection rights, the Jones deci-

sion identified a rational basis for treating Jones differently than certain

other state prisoners. See 698 S.E.2d at 58. Put succinctly, the court deter-

mined that Jones was convicted of a different crime — first-degree murder

— than other prisoners serving sentences for terms of years. Id. Thus,

Jones and those prisoners similarly situated present a greater threat to soci-

ety. Id. There is no equal protection issue pursued in this appeal.

WADDELL v. DEPARTMENT OF CORRECTION 11

D.

1.

In Waddell’s 28 U.S.C. § 2254 petition, he maintains that

the Jones decision is erroneous and that his federally pro-

tected constitutional rights — due process and ex post facto

— must be vindicated. By its Opinion, the district court first

decided that Waddell’s claims for habeas corpus relief were

time-barred. See Opinion 9.6 The Antiterrorism and Effective

Death Penalty Act of 1996 ("AEDPA"), which became effec-

tive on April 24, 1996, subjects § 2254 petitions of state pris-

oners to a one-year statute of limitations. See 28 U.S.C.

§ 2244(d)(1). More specifically, AEDPA authorizes such pris-

oners one additional year after its enactment, until April 24,

1997, to timely file federal habeas claims that arose prior to

AEDPA’s enactment. The district court decided that the appli-

cable statute of limitations in Waddell’s case is found in

§ 2244(d)(1)(D), and that the factual predicate to his claims

were available to him long before AEDPA was enacted. See

Opinion 8-9.7 The court thus held that Waddell’s § 2254

6

Upon filing his § 2254 petition in district court, Waddell also filed a

habeas corpus petition in the Supreme Court of North Carolina, seeking

to ensure, in his terms, "that his federal habeas claims are not procedurally

defaulted." See Opinion 5. On November 4, 2010, the state supreme court

summarily denied Waddell’s state habeas petition. See Waddell v. Keller,

705 S.E.2d 342 (N.C. 2010). In its Opinion, the district court related that

the State conceded that Waddell complied with the exhaustion mandate of

§ 2254(b)(1), and recognized the Jones decision as the implicit basis of the

state supreme court’s denial of Waddell’s state habeas petition. The State

presents no issue in this appeal with respect to exhaustion.

7

AEDPA amended 28 U.S.C. § 2244(d)(1) to create a one-year statute

of limitations, providing in pertinent part:

(d) (1) A 1-year period of limitation shall apply to an application

for a writ of habeas corpus by a person in custody pursuant to the

judgment of a State court. The limitation period shall run from

***

(D) the date on which the factual predicate of the claim or claims

presented could have been discovered through the exercise of due

diligence.

28 U.S.C. § 2244(d)(1)(D).

12 WADDELL v. DEPARTMENT OF CORRECTION

habeas petition, filed on October 22, 2010, was at least thir-

teen years late and time-barred. The Opinion explained that,

"[b]y not filing this claim with this court on or before April

24, 1997, the claim is barred and no adequate reason has been

provided to otherwise toll the operation of the statute of limi-

tations." Id. at 9.

2.

Despite deeming Waddell’s habeas claims to be time-

barred, the district court addressed their merits. In doing so,

the court first determined that the proceedings in Jones and

Brown rendered an evidentiary hearing unnecessary on Wad-

dell’s § 2254 petition. See Opinion 9-10. The court then prop-

erly recognized that, in light of the Jones decision, the issue

was "‘not whether a federal court believes the state court’s

determination was incorrect but whether that determination

was unreasonable — a substantially higher threshold.’" Id. at

13 (quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)).

The court further explained that, "[t]o the extent petitioner is

basing his first contention on an alleged violation of state reg-

ulatory procedure, state law, or the separation of powers doc-

trine, or any provision of the North Carolina Constitution,

such contention is not cognizable on federal habeas review."

Id. at 14.

By its Opinion, the district court ruled that the Jones deci-

sion had reasonably determined that the DOC’s plan for appli-

cation of good time credits was within its statutory authority,

and that Waddell did not earn credits "without reservation or

restriction." Opinion 14-15. Because the DOC had never

applied good time credits to Waddell’s unconditional release

date, the court observed, he "had no legitimate expectation

that he would be unconditionally released any time sooner

than eighty years minus credit for any pre-trial confinement;

equally, he has no viable argument under federal law that

respondents took away any liberty interest without Due Pro-

cess of law." Id. at 18-19.

WADDELL v. DEPARTMENT OF CORRECTION 13

The district court also ruled that Jones had not unreason-

ably determined that there was no ex post facto violation, in

that the application of Waddell’s good time credits had never

changed. The court elaborated:

Here, the North Carolina legislature has not enacted

a statute requiring DOC to apply a prisoner’s accu-

mulated good time, gain time, or merit time credits

to reduce an unconditional release date on a life sen-

tence. The undisputed record shows that such credits

have never been applied to reduce petitioner’s life

sentence, he has not been released, and no statute has

been enacted cancelling any credits he already

received.

Opinion 21.

The district court denied Waddell’s § 2254 claims to relief,

ruling that the Jones decision satisfied the AEDPA require-

ments. The district court then issued a certificate of appeala-

bility, pursuant to 28 U.S.C. § 2253(c), and Waddell has filed

a timely notice of appeal. We possess jurisdiction pursuant to

28 U.S.C. §§ 1291 and 2253(c).

II.

We review de novo a district court’s denial of habeas cor-

pus relief. See DeCastro v. Branker, 642 F.3d 442, 449 (4th

Cir. 2011). When habeas corpus claims have been adjudicated

on the merits by the state court, however, we may not grant

relief unless

the state court’s adjudication "resulted in a decision

that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as

determined by the Supreme Court of the United

States" or "resulted in a decision that was based on

an unreasonable determination of the facts in light of

14 WADDELL v. DEPARTMENT OF CORRECTION

the evidence presented in the State court proceed-

ing."

Lewis v. Wheeler, 609 F.3d 291, 300 (4th Cir. 2010) (quoting

28 U.S.C. § 2254(d)). As the Supreme Court has recognized

with respect to AEDPA:

Under the "contrary to" clause, a federal habeas

court may grant the writ if the state court arrives at

a conclusion opposite to that reached by this Court

on a question of law or if the state court decides a

case differently than this Court has on a set of mate-

rially indistinguishable facts. Under the "unreason-

able application" clause, a federal habeas court may

grant the writ if the state court identifies the correct

governing legal principle from this Court’s decisions

but unreasonably applies that principle to the facts of

the prisoner’s case.

Williams v. Taylor, 529 U.S. 362, 412-13 (2000). The Court

recently elaborated on the concept of AEDPA deference by

explaining: "This is a ‘difficult to meet’ and ‘highly deferen-

tial standard’ for evaluating state-court rulings, which

demands that state-court decisions be given the benefit of the

doubt." Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011)

(citations omitted).

III.

On appeal, Waddell maintains that the district court erred

in its rulings on the statute of limitations issue and on the mer-

its of his claims. First, he asserts that his 28 U.S.C. § 2254

petition is not time-barred because the factual predicate of his

constitutional claims did not arise until October 29, 2009,

when the DOC failed to release him from prison. Second, on

the merits, Waddell admits that the DOC always recorded his

sentence as though he had received an indeterminate life sen-

tence, instead of a life sentence that, under the eighty-year

WADDELL v. DEPARTMENT OF CORRECTION 15

rule, was deemed to be eighty years. See Br. of Appellant 4-

5. Waddell asserts, however, that the DOC’s failure to record

his sentence as a term of years, periodically reduced by the

application of good time credits, is an error leading to his cur-

rent unlawful incarceration.

Recognizing that Jones is the controlling state court author-

ity on this issue, Waddell maintains that the Jones decision

was contrary to, and involved an unreasonable application of,

clearly established federal law as determined by the Supreme

Court of the United States. Because Jones was the implicit

basis for the state supreme court’s denial of Waddell’s state

habeas petition, see supra note 6, Waddell has properly for-

mulated his AEDPA obligations. More specifically, Waddell

contends that the Jones court disregarded applicable due pro-

cess jurisprudence when it deferred to the DOC’s position that

life sentences under the eighty-year rule are indefinite sen-

tences. Waddell also contends that the Jones court erred in its

application of the Supreme Court’s ex post facto principles,

maintaining that the DOC retroactively deprived him of the

right to use good time credits to calculate his unconditional

release date.

A.

We first assess the district court’s ruling that Waddell’s

§ 2254 claims are time-barred. In that respect, Waddell con-

tends that the factual predicate of his claims is "the DOC’s

failure to release [him] from prison on [October 29, 2009,]"

and that fact was not available to him prior to that date. Br.

of Appellant 10. In support of that proposition, Waddell

argues that, because his good time credits were earned prior

to the enactment of AEDPA, he was not on notice "that he

should have been able to file his claim one year following the

enactment of AEDPA." Id. at 13.

There is a fundamental factual error in Waddell’s conten-

tion that he was slated to be released on October 29, 2009. On

16 WADDELL v. DEPARTMENT OF CORRECTION

this record, Waddell’s tentative release date, after applying his

good time credits, was calculated by the DOC as January 22,

2010, pursuant to the now-superseded Bowden decision.8

Thus, the factual predicate of Waddell’s claim could not have

been "the DOC’s failure to release Mr. Waddell from prison"

on October 29, 2009.

Importantly, Waddell’s correct release date on the DOC

records has never reflected a reduced sentence with the appli-

cation of good time credits. After Waddell was sentenced to

life under the eighty-year rule, his projected release date was

initially recorded in the DOC records as "1/2/9999," and that

date was officially revised in 2009 to "10/31/2054." J.A. 119,

100. Although Waddell maintains that good time credits

should have been used to reduce his release date, the DOC has

never used such credits to reduce a life sentence, regardless

of whether a prisoner falls within the eighty-year rule. Thus,

the factual predicate of the constitutional claims in Waddell’s

§ 2254 petition — and being pursued in this appeal — was

available to him prior to April 24, 1997. Under AEDPA,

Waddell was last authorized to pursue a § 2254 habeas corpus

claim on that date.

It is possible, however, to construe Waddell’s limitations

argument as being that the factual predicate of his constitu-

tional claims is the DOC’s failure to release the qualified pris-

oners on October 29, 2009, notwithstanding his erroneous

8

Notably, the State suggests that Waddell’s tentative release date was

June 25, 2008, and that he was among the qualified prisoners that should

have been released, under the Bowden decision, on October 29, 2009. See

Br. of Appellee 4. There is no record support, however, for the proposition

that Waddell’s release date was ever tentatively calculated as June 25,

2008. See J.A. 119; id. at 126-28 (October 16, 2009 newspaper article

naming the twenty inmates — not including Waddell — to be released on

October 29, 2009). The date of June 25, 2008 is reflected in the Joint

Appendix as the tentative release date of a prisoner named Willard Warren

— but no one else. See id. at 119; see also Warren v. Keller, No. 10-247,

2011 WL 4804370 (W.D.N.C. Oct. 11, 2011).

WADDELL v. DEPARTMENT OF CORRECTION 17

assertion that he was among that group of prisoners. On Octo-

ber 29, 2009, Waddell was plainly on notice that the DOC

would treat him like the qualified prisoners and decline to

apply good time credits to his release date. In these circum-

stances, we are inclined to agree with the district court that

"neither the factual predicate nor the operative constitutional

rights were unavailable to [Waddell] before the decision in

Bowden." Opinion 9. However, inasmuch as the statute of

limitations question is arguably more difficult than the merits

issues, we are content to assume without deciding that Wad-

dell’s claims are not time-barred and proceed with our analy-

sis of their merits. See Bauberger v. Haynes, 632 F.3d 100,

103 (4th Cir. 2011) (assuming without deciding that habeas

corpus claim satisfied AEDPA threshold demands in order to

"avoid wasting the parties’ and the courts’ limited resources

on questions that have no effect on the outcome of the case"

(internal quotation marks omitted)).

B.

Because Waddell’s § 2254 claims are identical to two of

those disposed of in Jones v. Keller, the Jones decision — on

which the denial of Waddell’s state habeas petition was obvi-

ously based — constitutes a determination of those claims by

the Supreme Court of North Carolina. And we may only

assess those claims through the lens of § 2254(d). As a result,

we are not entitled to grant relief unless the Jones decision

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

clearly established Federal law, as determined by the Supreme

Court of the United States." 28 U.S.C. § 2254(d)(1); see Har-

rington v. Richter, 131 S. Ct. 770, 784 (2011) (observing that

"determining whether a state court’s decision resulted from an

unreasonable legal or factual conclusion does not require that

there be an opinion from the state court explaining the state

court’s reasoning").

Importantly, we review § 2254 claims for violations of fed-

eral law only, inasmuch as "federal habeas corpus relief does

18 WADDELL v. DEPARTMENT OF CORRECTION

not lie for errors of state law." Lewis v. Jeffers, 497 U.S. 764,

780 (1990). Thus, we are not entitled to decide whether the

DOC’s actions fall within the statutory authority delegated to

it under North Carolina law, but only whether the DOC’s

refusal to apply Waddell’s good time credits to reduce his life

sentence violated the due process clause or the ex post facto

clause of the Constitution.

1.

First, the Jones court ruled that Jones’s continued incarcer-

ation did not contravene his due process rights under the Con-

stitution of the United States. Waddell’s challenge to that

ruling relies on the premise that the DOC awarded Waddell

good time credits that reduced his life sentence, and thereafter

deprived him of those credits without the minimum proce-

dures necessary to satisfy his due process guarantees. Wad-

dell’s contention in this regard is flawed in at least two

material respects. That is, his factual premise is incorrect, and

Supreme Court precedent does not support his contention.

Supreme Court precedent speaks directly to the due process

issue as it relates to good time credits. The Court held in 1974

that a prisoner’s interest in good time credits has substance,

and that due process requires that such a right not be "arbitrar-

ily abrogated." See Wolff v. McDonnell, 418 U.S. 539, 557

(1974). Thus, Wolff recognized that after a prisoner has

earned good time credits under a state statute that awards

mandatory sentence reductions for good behavior, he pos-

sesses a liberty interest in a reduced sentence, which cannot

be revoked in the absence of minimum procedural guarantees.

Id. at 556. In Waddell’s case, however, there was nothing

arbitrary about the DOC’s failure to apply good time credits

to reduce his life sentence, and nothing that was rightfully his

was abrogated. As the Jones decision explains, the DOC has

never used good time credits for the purpose of reducing a life

sentence. See Jones, 698 S.E.2d at 56-57. On this record, the

DOC administered good time credits for the purpose of calcu-

WADDELL v. DEPARTMENT OF CORRECTION 19

lating parole eligibility dates, determining custody grades,

and, in the event a life sentence was commuted by the Gover-

nor to a term of years, to reduce the sentence accordingly.

Because good time credits were never used for the purpose of

achieving the relief Waddell seeks, his right to use such cred-

its in that manner could not be abrogated. See Greenholtz v.

Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 11-12

(1979) (observing "difference between losing what one has

and not getting what one wants").

Put simply, the DOC’s practice of applying earned good

time credits for certain identified purposes, but not for the

purpose sought by Waddell, does not give rise to a liberty

interest protected by the Due Process Clause. See Conn. Bd.

of Pardons v. Dumschat, 452 U.S. 458, 465 (1981) (empha-

sizing that common practice of Board of Prisons was insuffi-

cient to create liberty interest where statute neither required

nor prohibited such practice). In other words, as explained by

North Carolina’s highest court in the Jones decision,

"[b]ecause [Waddell] has received the awards to which he is

entitled for the purposes for which he is entitled, he has not

been denied credits in which he has a constitutionally pro-

tected liberty interest." Jones, 698 S.E.2d at 56. As a result,

Waddell’s liberty interest in good time credits has been suffi-

ciently recognized. His due process claim therefore fails.

2.

Turning to Waddell’s second claim, the Jones decision

determined that there had been no ex post facto violation

because no regulatory or legislative enactment had altered

Jones’s award of good time credits. The ex post facto clause

bars a retroactive enactment that increases the punishment for

a crime after it has been committed. See Garner v. Jones, 529

U.S. 244, 249 (2000). It is settled that "[t]he prohibition

against ex post facto laws, which applies only to penal stat-

utes which disadvantage the offender affected by them,

assures that innocent conduct is not made criminal after the

20 WADDELL v. DEPARTMENT OF CORRECTION

fact and that greater punishment is not imposed after the fact."

Jones v. Murray, 962 F.2d 302, 309 (4th Cir. 1992) (internal

quotation marks omitted).

The DOC’s failure to utilize Waddell’s good time credits to

reduce his life sentence under the eighty-year rule did not

result from any statutory or regulatory enactment after Wad-

dell’s first-degree murder offense. Waddell’s argument in this

regard is that the DOC’s creation of a distinction between

good time credits awarded to prisoners serving terms of years

and such credits awarded to prisoners serving life sentences

under the eighty-year rule "is a post-hoc rationale designed to

undercut the legislature’s determination that inmates sen-

tenced under § 14-2 had eighty year terms." Br. of Appellant

19. As we have emphasized, however, the DOC has always

treated life sentences and sentences for terms of years differ-

ently — regardless of whether a sentence was deemed an

eighty-year term under § 14-2. The DOC’s revision of the

release dates of prisoners — such as Waddell — sentenced

under the eighty-year rule was simply a correction of its

records, and failed to impact on how good time credits were

being applied. See Warren v. Baskerville, 233 F.3d 204, 207

(4th Cir. 2000) (recognizing that "[a] change in an administra-

tive policy that was in effect at the time of a criminal’s under-

lying offenses does not run afoul of the prohibition against ex

post facto laws"); Stephens v. Thomas, 19 F.3d 498, 500-01

(10th Cir. 1994) (finding no ex post facto violation when

department of corrections fixed erroneous internal practices

relating to good time credits, even though change disadvan-

taged certain prisoners).

Waddell’s ex post facto claim has no merit because, as the

Jones decision explained, no legislative or regulatory enact-

ment ever altered Waddell’s award of good time credits. Put

simply, Waddell’s sentence has been — and remains — life

in prison. His current projected release date was calculated

pursuant to a short-lived enactment that deemed a "life sen-

tence" to be eighty years. Such a release date calculation is

WADDELL v. DEPARTMENT OF CORRECTION 21

the product of a legislative enactment and does not guarantee

Waddell’s release at any time before 2054. Although North

Carolina law provided for the award of good time credits, it

is for the DOC to determine how those credits are to be

applied. See N.C. Gen. Stat. § 148-13.

Waddell’s § 2254 claims are therefore simply challenges to

the State’s interpretations of its own statutes and regulations.

Put succinctly, the DOC’s obligation to keep track of good

time credits for purposes of parole eligibility, custody grade,

and commutation, and its decision not to utilize them to

reduce the release dates of prisoners sentenced under the

eighty-year rule, was recognized in the Jones decision — by

the state’s highest court — as a reasonable application of the

DOC’s authority to administer sentences. Under AEDPA, we

are only entitled to assess whether the ex post facto ruling of

the Jones decision is contrary to or an unreasonable applica-

tion of clearly established federal law, as determined by the

Supreme Court of the United States. That inquiry must be, as

the district court properly recognized, answered in the nega-

tive. The ex post facto claim is therefore also denied.

IV.

Pursuant to the foregoing, the judgment of the district court

is affirmed.

AFFIRMED