Sharon Burnette v. Helen Fahey

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SHARON BURNETTE; PAMELA K. 

BURROUGHS; FRANK CARTER, JR.;

EDWARD CONQUEST; DONALD W.

HOFFMAN; MONTY KING, formerly

known as Imond Monty Hicks;

LARRY MACON; MARVIN MCCLAIN;

BENJAMIN PERDUE, JR.; HENRY

STUMP; BARBARA TABOR, Suing on

behalf of themselves and all others

similarly situated,

Plaintiffs-Appellants,

v.

HELEN F. FAHEY, In her capacity as

Chair of the Virginia Parole  No. 11-1324

Board; CAROL ANN SIEVERS, In her

capacity as Vice-Chair of the

Virginia Parole Board; JACKIE T.

STUMP, In his capacity as a

Member of the Virginia Parole

Board; MICHAEL M. HAWES, In his

capacity as a Member of the

Virginia Parole Board; RUDOLPH C.

MCCOLLUM, JR., In his capacity as

a Member of the Virginia Parole

Board,

Defendants-Appellees,



2 BURNETTE v. FAHEY





STEVEN WAYNE GOODMAN,

Amicus Supporting Appellant.



Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond.

Robert E. Payne, Senior District Judge.

(3:10-cv-00070-REP)

Argued: March 21, 2012

Decided: July 9, 2012

Before NIEMEYER, GREGORY, and FLOYD,

Circuit Judges.

Affirmed by published opinion. Judge Floyd wrote the opin-

ion, in which Judge Niemeyer concurred. Judge Gregory

wrote a dissenting opinion.

COUNSEL

ARGUED: Stephen Atherton Northup, TROUTMAN SAND-

ERS, LLP, Richmond, Virginia, for Appellants. Earle Duncan

Getchell, Jr., OFFICE OF THE ATTORNEY GENERAL OF

VIRGINIA, Richmond, Virginia, for Appellees. ON BRIEF:

Robert A. Angle, Robert M. Luck, III, TROUTMAN SAND-

ERS, LLP, Richmond, Virginia; Abigail Turner, Alex R.

Gulotta, Gail Starling Marshall, LEGAL AID JUSTICE CEN-

TER, Charlottesville, Virginia, for Appellants. Kenneth T.

Cuccinelli, II, Attorney General of Virginia, Stephen R.

McCullough, Senior Appellate Counsel, Charles E. James, Jr.,

Chief Deputy Attorney General, OFFICE OF THE ATTOR-

BURNETTE v. FAHEY 3

NEY GENERAL OF VIRGINIA, Richmond, Virginia, for

Appellees. Steven W. Goodman, Dillwyn, Virginia, Amicus

Curiae for Appellants.

OPINION

FLOYD, Circuit Judge:

Appellants (the Inmates), eleven inmates in the custody of

the Virginia Department of Corrections (DOC), brought this

action against members of the Virginia Parole Board (the

Board) in their official capacities. The Inmates contend that

the Board has adopted policies and procedures with respect to

parole-eligible inmates imprisoned for violent offenses that

violate the Due Process and Ex Post Facto Clauses of the

United States Constitution. Most notably, they assert that the

Board has implemented an unwritten policy of denying parole

to persons incarcerated for violent offenses. The district court

granted Appellees’ motion to dismiss the complaint, and the

Inmates filed this timely appeal. Because we agree that the

complaint fails to set forth sufficient facts to establish a plau-

sible entitlement to relief under either a due process or ex post

facto theory, we affirm.

I.

A.

Prior to 1994, Virginia law provided for discretionary parole1

of incarcerated offenders. By legislation enacted in 1994, the

1

Discretionary parole is distinct from mandatory parole, a program

under which a prisoner must be released on parole six months prior to the

final release date prescribed by his sentence. See Va. Code Ann. § 53.1-

159. The 1994 legislative changes did not affect the availability of manda-

tory parole. In this opinion, the term "parole" denotes discretionary parole

unless otherwise specified.

4 BURNETTE v. FAHEY

General Assembly abolished discretionary parole for all per-

sons incarcerated for felony offenses committed on or after

January 1, 1995. See Va. Code Ann. § 53.1-165.1. This legis-

lation did not disrupt the availability of discretionary parole

for persons who committed crimes prior to 1995, however.

The Virginia Code entrusts the administration of the discre-

tionary parole system to the Board, and it vests the Board with

broad discretion in carrying out its responsibilities. Section

53.1-136 of the Code obligates the Board to "[a]dopt . . . gen-

eral rules governing the granting of parole and eligibility

requirements, which shall be published and posted for public

review." Id. § 53.1-136(1). And this section further instructs

that the Board "shall . . . [r]elease on parole" parole-eligible

persons who "are found suitable for parole, according to those

rules" adopted by the Board. Id. § 53.1-136(2)(a). But the

Board may not release any person without first conducting a

"thorough investigation . . . into the prisoner’s history, physi-

cal and mental condition and character and his conduct,

employment and attitude while in prison" and "determin[ing]

that his release on parole will not be incompatible with the

interests of society or of the prisoner." Id. § 53.1-155(A). As

a general rule, the Board must consider parole-eligible

inmates on an annual basis, but it may defer subsequent

review for up to three years if an inmate has at least ten years

remaining on his sentence. Id. § 53.1-154.

In addition to discretionary parole, Virginia has a system of

conditional release for geriatric prisoners, which it instituted

in 1995. See id. § 53.1-40.01. This program is available to

prisoners (i) ages sixty-five or older who have served at least

five years of their imposed sentences or (ii) ages sixty or older

who have served as least ten years of their imposed sentences.

Id. Again, the Virginia Code grants the Board discretion to

promulgate regulations implementing the geriatric release

program. See id. The Board’s written policy permits it to

release an inmate under the geriatric release program only

upon a finding of "compelling reasons."

BURNETTE v. FAHEY 5

B.

The Inmates allege that, since the abolition of parole for

new felony offenders in 1995, the Board has instituted poli-

cies and procedural changes that effect a de facto abolition of

parole for parole-eligible persons convicted of violent

offenses, defined in the complaint as "murder, rape, sodomy,

robbery, assault, abduction, use of a weapon, and any other

felony that the Board considers to be violent."

As the Inmates observe, the Board has ceased utilizing a

risk assessment tool that was in use prior to 1995. In addition,

the Board has eliminated face-to-face interviews of prisoners

by Board members, supplanting them with interviews, often

via video, by parole examiners who then submit reports to the

Board through an electronic database. Board members also

have stopped meeting in person; instead, they circulate an

inmate’s file before voting electronically to grant or deny

parole. And, pursuant to a 2002 rule change, the Board has

decreased the frequency of its meetings with inmates’ families

and representatives, who now may schedule such meetings no

more than once every two years and may meet with only one

of the five Board members.

In addition to these procedural changes, the Inmates note

that, in 1998, the Board repealed prior rules governing parole

that it had published in the Virginia Administrative Code. In

place of these rules, it distributed a "Policy Manual." This

Manual outlines fourteen factors that, according to the Board,

guide its discretion in parole decisions. The nature of the

offense of incarceration is one such factor, along with consid-

erations of rehabilitation and the risk posed by the prisoner to

himself and to society upon his release.

Despite the multiplicity of factors identified in this Manual,

the Inmates allege that, in practice, the Board "has relied pri-

marily, if not exclusively, on the ‘serious nature and circum-

stances of the crime’ when making parole determinations with

6 BURNETTE v. FAHEY

regard to inmates convicted of violent offenses" and has failed

to give "fair or meaningful consideration to other factors in its

Policy Manual." They claim that the Board’s procedural

changes reflect its choice to consider only the nature of the

original offense. The exclusive reliance on this consideration,

the Inmates aver, "has resulted in virtually automatic and

repeated denials of parole for inmates convicted of violent

offenses, even when the other factors in the Manual and the

statute would favor release."

C.

The Inmates cite extensive statistical evidence to support

their claim of a de facto abolition of parole for those con-

victed of violent offenses. Prior to the elimination of discre-

tionary parole for new offenders, they note, Virginia’s parole-

grant rate—the percentage of those considered who were

granted parole—exceeded 40%. In 1989, 42% of those con-

sidered were released on parole, and from 1990 to 1993, the

parole-grant rate averaged over 41%. As a result of this rela-

tively high grant rate, offenders generally did not serve the

entire length of their sentences: in 1993, a person convicted

of a violent offense in Virginia served, on average, only 38%

of his total sentence. And, according to the Inmates, these

numbers led participants in the court system, including defen-

dants and sentencing judges, to anticipate early release.

Since 1995, however, Virginia has seen a precipitous

decrease in the parole-grant rate. The rate for all parole-

eligible inmates dipped to 18% in fiscal year (FY) 1996. It

further declined to 8% in FY 2000 and to less than 5% in FY

2008. Violent offenders face still lower parole-grant rates: the

rate for inmates convicted of violent offenses ranged between

3.7% and 2.1% per year from FY 2002 to FY 2008. And

many of those granted parole were nearing their mandatory

parole release dates, often having "already served more than

85% of the time before their mandatory parole release

date[s]."

BURNETTE v. FAHEY 7

The Inmates contend that one factor, the seriousness of the

offense, has played the primary or exclusive role in motivat-

ing the Board to deny parole to violent offenders. In FYs 2006

and 2007, for example, the Board cited "‘the serious nature

and circumstances of the crime’ or words to that effect" as the

sole reason for its decision in approximately 45% of all parole

denials.

According to the Inmates, this focus on the seriousness of

the offense has also infected the Board’s administration of the

geriatric release program. They allege that since the program

went into effect in 1995, the Board has granted only seven

geriatric release petitions. And it has named the serious nature

of the original offense as the reason for 95% of the denials.

D.

The Inmates2 are among those parole-eligible inmates con-

victed of violent offenses committed prior to January 1, 1995,

who have been denied parole. Each was convicted of at least

one count of murder. Their sentences range from eighty years’

imprisonment to multiple life terms, and each has served at

least twenty-three years of his or her term of imprisonment.

While in prison, many of the Inmates have successfully com-

pleted or participated in rehabilitative, vocational, educa-

tional, or employment programs. Yet despite their largely

positive institutional records and limited prior criminal

records, the Board has denied parole to each Inmate on multi-

ple occasions.

The Inmates allege the following with respect to their indi-

vidual histories and experiences with the Board:

1. Sharon Burnette pled guilty to murder and use

2

Appellants sought to represent a class of similarly situated individuals,

but the district court had not yet certified a class at the time it dismissed

the complaint.

8 BURNETTE v. FAHEY

of a firearm in connection with the 1981 killing

of a gas station attendant. For these crimes, she

received a sentence of life plus one year. Before

this, her criminal record reflected only a misde-

meanor shoplifting conviction. She has had one

institutional infraction during her period of

incarceration, a 1982 charge for failing to stand

for count. Notwithstanding this record, the

Board has denied Burnette parole twelve times,

each time citing only "the ‘serious nature and

circumstances of the crime’ or words to that

effect."

2. Pamela Burroughs pled guilty to murder and

robbery for the killing of a robbery victim in

1985. She received a life term for murder, a sus-

pended sentence of thirty years for robbery, and

a term of five years for drug distribution

(charged under a separate indictment). Bur-

roughs had only one other conviction, for tres-

passing. While in prison, she has received one

institutional infraction, for sleeping through

count. But she has been denied parole seven

times, and the Board has given a single reason

for these denials, the "‘serious nature and cir-

cumstances of the crime’ or words to that

effect."

3. Frank Carter, Jr., received an eighty year sen-

tence for the 1976 killing of his former girl-

friend and her boyfriend. His prior criminal

record included numerous misdemeanors and a

juvenile offense, and he committed an institu-

tional infraction for improper consensual con-

duct with his wife in 1987. The Board has

denied Carter parole twenty-three times, citing

the seriousness of his offenses as the only justi-

BURNETTE v. FAHEY 9

fication, except in 1988, when it also referenced

his "poor institutional conduct."

4. Edward Conquest had no prior criminal record

at the time he was convicted and sentenced to

two life terms for first-degree murder and rob-

bery, committed in 1975. His last institutional

infraction, disobeying a direct order, occurred in

1989, and his behavior while in prison has been

described as "exemplary." Nevertheless, the

Board has declined to parole him on twenty-two

occasions, each time citing the serious nature

and circumstances of his crimes.

5. Donald Hoffman pled guilty to murder, which

he committed in 1975. The victim previously

had been raped by his codefendant. For this

crime, Hoffman received a life sentence. Prior to

this conviction, he had been convicted of simple

assault as a juvenile, and another assault charge

against him had been dismissed upon accord and

satisfaction. He has been cited for one institu-

tional infraction, in 2002, for improper consen-

sual conduct with his wife. Although DOC

officials have recommended him for parole,

Hoffman has been denied parole fourteen times

based only on the seriousness of his crimes.

6. Monty King was sentenced to life imprisonment

for felony murder and seven years’ imprison-

ment for robbery. The charges arose from the

1986 beating death of an elderly woman during

an automobile theft. He was also sentenced to

five years for a separate attempted robbery. He

had no prior criminal record, and he has com-

mitted no institutional infractions since a 1994

charge of sleeping through count. Yet the Board

has denied parole to King seven times, each time

10 BURNETTE v. FAHEY

providing the same reason, the seriousness of his

offenses.

7. Larry Macon committed his offenses in 1976.

He was convicted of murder and robbery, for

which he received sentences of life and nine

years’ imprisonment, respectively. His prior

criminal history consisted of three minor juve-

nile offenses and an adult gambling offense.

While in prison, he has had "a few minor institu-

tional infractions," the most recent of which

occurred in 2006. He has been denied parole

eighteen times, and the Board has justified these

denials solely by reference to the seriousness of

his crimes.

8. Marvin McClain pled guilty to murder and rob-

bery in 1973, prior to which his record consisted

of two juvenile offenses. The complaint does not

specify the length of his sentence but avers that

McClain has been incarcerated for more than

thirty-six years. During this time, he has

incurred six disciplinary infractions and was

convicted of a new crime for possessing a home-

made knife. The Board has denied McClain

parole twenty-one times, citing the seriousness

of the crimes and, occasionally, McClain’s con-

viction of a crime while incarcerated.

9. Benjamin Purdue, Jr., was sentenced to two life

terms plus twenty-one years for the malicious

wounding of his former wife, the murder of her

parents, and related firearms offenses. He com-

mitted these offenses in 1983. At the time of

conviction, he had no prior criminal history, and

he has incurred no infractions while imprisoned.

On ten occasions, the Board has declined to

release Purdue on parole. Each time, it has pro-

BURNETTE v. FAHEY 11

vided the same reason, the seriousness of the

crimes.

10. After pleading guilty to the 1980 murder of a

bootlegger, Henry Stump was sentenced to a

term of ninety-three years’ imprisonment. His

prior criminal record consisted of a conviction

for auto theft as a juvenile and public intoxica-

tion charges. While serving his sentence,

Stump has committed two disciplinary infrac-

tions, for possessing dice in 1991 and an extra

pair of reading glasses in 2008. He also pled

guilty to possession of controlled substances

for two incidents occurring during his incarcer-

ation. The Board has declined to parole Stump

on eighteen occasions. In doing so, it has

always cited the seriousness of the crime and,

several times, it has also referenced Stump’s

commission of crimes while incarcerated.

11. In 1981, Barbara Tabor was convicted of fel-

ony murder, for which she received a sentence

of life plus twenty-one years. Her criminal his-

tory at the time included only one prior convic-

tion, for transporting stolen property. She has

been charged with three minor disciplinary

infractions while in prison. The Board has

denied parole to Tabor eleven times. The sole

reason given for each denial is the seriousness

of the crime.

In sum, the Inmates claim that, in evaluating a prisoner for

parole, the Board has replaced fair and meaningful review of

the fourteen Policy Manual factors with consideration of only

one factor, the offense for which the prisoner is incarcerated.

Thus, they assert that their limited prior criminal histories and

generally outstanding institutional records cannot alter the

outcome of the Board’s determination because, for certain

12 BURNETTE v. FAHEY

violent crimes, the Board has replaced the exercise of discre-

tion with the automatic denial of parole. According to the

Inmates, the Board fails to consider violent offenders as indi-

viduals; instead, it effectively applies the 1994 legislative

changes retroactively to eliminate discretionary parole for

parole-eligible violent offenders.

II.

The Inmates brought suit, asserting that the Board’s policy

changes—particularly its alleged de facto abolition of

parole—violate their rights under the Due Process Clause and

the Ex Post Facto Clause of the United States Constitution.

The district court granted the Board’s motion to dismiss the

complaint.

Analyzing the due process claim, the district court first rec-

ognized that the Inmates have a limited constitutional interest

in parole consideration derived from Virginia law. But the

court found that the complaint’s allegations showed that the

Board afforded the Inmates sufficient process to satisfy this

interest by providing each Inmate with a constitutionally valid

reason for the denial of parole.

In addition, the district court found that the complaint’s fac-

tual allegations failed to support the conclusion that the Board

has effectively eliminated parole for inmates convicted of vio-

lent offenses. Of note, the Inmates’ statistical evidence

showed that in 55% of cases the denial of parole was based

on reasons other than just the serious nature and circum-

stances of the original offense. Moreover, according to this

data, the Board continued to parole between 120 and 230 vio-

lent offenders each year, demonstrating that parole remained

attainable for such inmates. And the dwindling parole-grant

rates could be explained by the shrinking pool of parole-

eligible individuals. The district court reasoned that those per-

sons best suited for parole were released each year, but due

to the abolition of discretionary parole for new felony offend-

BURNETTE v. FAHEY 13

ers, no new inmates were becoming eligible for parole.

Hence, each year the Board considered a smaller pool of

potential parolees, less suitable for release than those consid-

ered in the past. The allegations, the district court concluded,

failed to state a plausible claim for a due process violation.

The district court likewise found the Inmates’ allegations

with respect to the Ex Post Facto Clause lacking. The

Inmates’ statistical allegations undermined their assertion that

the Board has imposed a de facto rule precluding inmates con-

victed of violent offenses from parole. Thus, the district court

concluded that, at most, the Inmates were complaining that

the Board had become harsher in exercising its discretion, and

because the relevant statutes had always authorized the Board

to adopt a stricter stance, the pleadings were insufficient to

support an ex post facto claim.

III.

"We review de novo a district court’s decision to dismiss

for failure to state a claim, assuming all well-pleaded, non-

conclusory factual allegations in the complaint to be true."

Aziz v. Alcolac, Inc., 658 F.3d 388, 391 (4th Cir. 2011). To

survive a Rule 12(b)(6) motion, a complaint must allege facts

sufficient "‘to raise a right to relief above the speculative

level,’ thereby ‘nudg[ing] the[ ] claims across the line from

conceivable to plausible.’" Id. (first alteration in original)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570

(2007)). "Where a complaint pleads facts that are ‘merely

consistent with’ a defendant’s liability, it ‘stops short of the

line between possibility and plausibility of ‘entitlement to

relief.”" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Twombly, 550 U.S. at 557).

In undertaking this review, although we must accept the

truthfulness of all factual allegations, we need not assume the

veracity of "bare legal conclusions." Aziz, 658 F.3d at 391.

Therefore, like the district court, we begin our analysis by dif-

14 BURNETTE v. FAHEY

ferentiating between the Inmates’ factual allegations and legal

conclusions. The allegations with respect to the statistics on

parole release and the Inmates’ histories and experiences with

the Board are factual. As such, we accept them as true. But

we will accept the conclusions the Inmates draw from these

facts—that the Board has ceased exercising its discretion and,

instead, denies parole automatically due to the crime of incar-

ceration—only to the extent they are plausible based on the

factual allegations.

A.

The Fourteenth Amendment’s Due Process Clause guards

against unlawful deprivations of life, liberty, or property. U.S.

Const. amend. XIV, § 1. Thus, in analyzing the Inmates’ due

process claim, we first must consider whether, and to what

extent, they have a protectible interest under this Clause. See

Greenholtz v. Inmates of the Neb. Penal & Corr. Complex,

442 U.S. 1, 7 (1979); Slezak v. Evatt, 21 F.3d 590, 594 (4th

Cir. 1994). If the Inmates have asserted a protectible interest,

we then determine whether they have sufficiently alleged that

the Commonwealth failed to afford them the minimum proce-

dural protections required by the Fourteenth Amendment in

depriving them of this interest. See Morrissey v. Brewer, 408

U.S. 471, 481 (1972); Slezak, 21 F.3d at 593.

"A liberty interest may arise from the Constitution itself" or

"from an expectation or interest created by state laws or poli-

cies." Wilkinson v. Austin, 545 U.S. 209, 221 (2005). An "ab-

stract . . . desire" or "unilateral expectation" is insufficient to

create a protectible interest. Greenholtz, 442 U.S. at 7 (quot-

ing Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577

(1972)) (internal quotation marks omitted). Rather, the Due

Process Clause protects only those interests to which an indi-

vidual has a "legitimate claim of entitlement." Id. (quoting

Roth, 408 U.S. at 577) (internal quotation marks omitted). It

is well-established in the context of parole that "[t]here is no

constitutional or inherent right of a convicted person to be

BURNETTE v. FAHEY 15

conditionally released before the expiration of a valid sen-

tence." Id. Accordingly, to the extent the Inmates enjoy a pro-

tectible interest in parole, this interest must find its roots in

rights imparted by Virginia law.

The Inmates assert, and the Board concedes, that Virginia

law gives rise to a limited interest in consideration for parole,

but not in parole release. Specifically, the Virginia Code man-

dates that the Board must adopt rules governing the granting

of parole and eligibility for parole and that it must release eli-

gible persons who it finds suitable for parole under these

rules. Va. Code Ann. § 53.1-136(1)–(2)(a). Because the deci-

sion whether to grant parole is a discretionary one, "a prisoner

cannot claim entitlement and therefore a liberty interest in the

parole release." Gaston v. Taylor, 946 F.2d 340, 344 (4th Cir.

1991) (en banc); see also Vann v. Angelone, 73 F.3d 519, 522

(4th Cir. 1996). This is true even if state officials consistently

have exercised their discretion to grant release in the past: "A

constitutional entitlement cannot be created . . . merely

because a wholly and expressly discretionary state privilege

has been granted generously in the past." Hill v. Jackson, 64

F.3d 163, 170 (4th Cir. 1995) (quoting Conn. Bd. of Pardons

v. Dumschat, 452 U.S. 458, 465 (1981)) (internal quotation

marks omitted). But, as the Board acknowledges, state law

"giv[es] to a [parole-eligible] prisoner the right for parole con-

sideration at a specified time." Gaston, 946 F.2d at 344; see

also Hill, 64 F.3d at 170.

Once a state has "create[d] a liberty interest, the Due Pro-

cess Clause requires fair procedures for its vindication."

Swarthout v. Cooke, 131 S. Ct. 859, 862 (2011) (per curiam).

Thus, although a state is under no obligation to offer parole,

once it has done so, we "will review the application of [these]

constitutionally required procedures." Id. But we are hard-

pressed "to imagine a context more deserving of federal defer-

ence than state parole decisions." Vann, 73 F.3d at 521. Thus,

in the parole context, "the procedures required are minimal."

Swarthout, 131 S. Ct. at 862.

16 BURNETTE v. FAHEY

In prior challenges to Virginia’s discretionary parole sys-

tem, we determined that, "[a]t most, . . . parole authorities

must ‘furnish to the prisoner a statement of its reasons for

denial of parole.’" Vann, 73 F.3d at 522 (quoting Franklin v.

Shields, 569 F.2d 784, 801 (4th Cir. 1978) (en banc)). Beyond

this, we have declined to hold that, as a constitutional matter,

each prisoner must "receive a personal hearing, have access

to his files, or be entitled to call witnesses in his behalf to

appear before the Board." Franklin, 569 F.2d at 800.

The Inmates acknowledge that each time they were denied

parole, the Board provided a reason or reasons for its denial.

Typically, the reason given has been "‘the serious nature and

circumstances of the crime’ or words to that effect." The

Inmates concede that this is a valid reason for the denial of

parole. Moreover, although they object to a number of proce-

dural changes that have occurred since the abolition of discre-

tionary parole in 1995, the Inmates had no entitlement to the

individual procedures.

The Inmates nonetheless assert that the Board has denied

them due process because it has failed to consider them for

parole in a fair and meaningful manner. That is, they argue

that the Board has disregarded its statutory mandate by failing

to determine whether a prisoner is suitable for parole through

an individual analysis of the factors identified in the Policy

Manual. They contend the Board, instead, has established a de

facto rule denying parole to persons imprisoned for violent

offenses.

This argument falters, however, because the facts alleged in

the complaint do not plausibly support this conclusion. As the

district court ably explained, the statistical allegations show

that the Board continues to grant parole to violent offenders,

though at lower rates than in the past. The Inmates allege that

in each year from FY 2002 through FY 2008, the Board

released on parole between 3.7% and 2.1% of parole-eligible

inmates incarcerated for violent offenses. This correlates to

BURNETTE v. FAHEY 17

between 120 and slightly more than 230 inmates per year. In

addition, according to the complaint, the seriousness of the

offense was the sole reason given in 45% of parole denials,

meaning that in more than half of denials the Board provided

another reason—either instead of or in addition to this fac-

tor—to explain its decision.

These facts indicate that the Board was making individual

determinations with respect to violent offenders. It was releas-

ing numerous such offenders despite the crimes of which they

were convicted. And, in many cases, it was not only consider-

ing but also relying on reasons other than the seriousness of

the crime and its attendant circumstances in deciding to deny

parole.

The Inmates have suggested that the Board is considering

illegitimate factors in deciding to release some violent offend-

ers but not others. They have offered only speculation in sup-

port of this view, however. In the absence of facts to the

contrary, we cannot presume that the Board has failed to con-

form to constitutional requirements and its statutory mandate,

see Garner v. Jones, 529 U.S. 244, 256 (2000). Here, the

Inmates’ statistical allegations fail to provide the necessary

facts.

The allegations regarding the Inmates’ individual circum-

stances fare no better. According to the complaint, each of the

Inmates had little or no criminal history at the time of his or

her conviction of the offense of incarceration, and many have

demonstrated consistently excellent institutional behavior.

Many have successfully participated in rehabilitative, educa-

tional, vocational, or like programs while in prison. Some

have garnered the support of counselors, DOC officers, and

others in seeking parole. Nevertheless, the Board has refused

to release them based on the seriousness of their crimes.

Indeed, for eight of the eleven Appellants, this factor, the "se-

rious nature and circumstances of the crime" (or like words),

18 BURNETTE v. FAHEY

has been the sole reason given in explaining repeated parole

denials.3

Yet we cannot infer from these facts that the Board is fail-

ing to consider each Inmate individually, according to the rel-

evant factors, when making these parole determinations. Each

of the Inmates was convicted of a very serious crime or

crimes, for which he or she received a lengthy sentence. It

appears from the complaint that the lightest sentence given to

any of the Inmates was eighty years’ imprisonment. It would

be well within the Board’s discretion to consider such a pris-

oner holistically and nevertheless to determine that he or she

has not served a sufficiently lengthy sentence in light of the

grave crime, notwithstanding an otherwise clear criminal his-

tory and superlative institutional conduct. Although the ulti-

mate result of this decisionmaking process would be to deny

parole based solely on the seriousness of the prisoner’s crime,

the process and decision would comply fully with constitu-

tional demands.

Here, the factual allegations do not demonstrate that the

Board has replaced this type of individual consideration with

a de facto rule rejecting violent offenders. Simply put, the

Board’s declination to grant parole to the Inmates—even

repeatedly—based on the seriousness of their offenses cannot

show that it has failed to consider other factors.4

3

This is true for Burnette (twelve denials), Burroughs (seven denials),

Conquest (twenty-two denials), Hoffman (fourteen denials), King (seven

denials), Macon (eighteen denials), Purdue (ten denials), and Tabor

(eleven denials).

4

That the Board has abandoned procedures, including a risk assessment

tool and in-person interviews by Board members, which the Inmates assert

would assist in the consideration of these other factors also fails to prove

that it is considering only the offense itself. For example, the Board may

consider a prisoner’s prior criminal record and institutional history without

these tools. And that its procedures may have become more technologi-

cally and electronically based does not indicate that the Board’s review

lacks substance.

BURNETTE v. FAHEY 19

Ultimately, the Inmates have presented only speculation

that the Board has imposed a bar against parole for violent

offenders. But without factual allegations supporting such an

inference, we cannot presume that the Board is failing to "fol-

low[ ] its statutory commands and internal policies in fulfill-

ing its obligations." Id. The Inmates, therefore, have failed to

show a plausible entitlement to relief as required under the

Iqbal-Twombly pleading standard.5 Consequently, we will

affirm the district court’s dismissal of the due process claim.

B.

The Inmates next assert that the Board has effected an ex

post facto enhancement of the punishment for their crimes, in

violation of the United States Constitution. This claim, too,

falls short.

The Ex Post Facto Clause prevents a state from "pass[ing]

any ‘ex post facto Law.’" Warren v. Baskerville, 233 F.3d

204, 207 (4th Cir. 2000) (quoting U.S. Const. art. I, § 10, cl.

5

The dissent urges that we have adopted a hyperliteral interpretation of

our due process precedent that would permit, for example, the Board to

deny parole to all eligible inmates using a form letter citing the nature and

circumstances of the offense. Post at 24 & n.1. With respect, we note that

we have done nothing of the sort. We merely find that our precedent dic-

tates that the Inmates have no due process right to the specific procedures

the Board has altered or eliminated since 1994.

In regard to the Inmates’ assertion that the Board is failing to exercise

discretion and is considering only the offense, without looking to other

factors, in deciding to deny parole, we reject this claim because the

Inmates have failed to allege adequate facts establishing that the Board is

doing so. As explained above, we, unlike the dissent, do not think that the

allegations regarding the Board’s procedural changes combined with the

denial of parole to these plaintiffs create a plausible—rather than merely

possible—inference that the Board is looking at only one factor, particu-

larly in light of the discordant implications of the statistical allegations.

Thus, we have no occasion in this case to consider whether and to what

extent Virginia law creates a right, protected under the Due Process

Clause, to the consideration of multiple factors in parole determinations.

20 BURNETTE v. FAHEY

1). Among other things, this Clause "bar[s] enactments which,

by retroactive operation, increase the punishment for a crime

after its commission." Garner, 529 U.S. at 249–50. To state

a claim for a violation of this provision, a plaintiff must plead

facts showing the retroactive application of a new rule that

"by its own terms" or through "practical implementation"

creates a "significant risk" of extending the period of incarcer-

ation to which he is subject. Id. at 255.

Assuming the Ex Post Facto Clause applies to the Board’s

policy changes,6 the Inmates have failed to identify a new pol-

6

As we observed in Warren, the Ex Post Facto Clause, by its text,

applies only to "laws." 233 F.3d at 207. Accordingly, we have limited its

scope to enactments of the legislature and to "legislative rules," i.e., rules

promulgated by administrative agencies pursuant to a delegation of legis-

lative authority. See United States v. Ellen, 961 F.2d 462, 465 (4th Cir.

1992). We have found that administrative policies that merely articulate

an agency’s interpretation of a statute, however, are not subject to the ex

post facto limitation. See id. Accordingly, in Warren, we concluded that

where a state parole board "made a policy decision that was within the

parameters of existing state law," no cause of action could arise under the

Ex Post Facto Clause. 233 F.3d at 208 (assessing a new policy of the Vir-

ginia Parole Board).

The Inmates contend that we abandoned this distinction in United States

v. Lewis, 606 F.3d 193 (4th Cir. 2010), in which we found an ex post facto

violation due to the retroactive application of a new version of the Federal

Sentencing Guidelines, notwithstanding the Guidelines’ discretionary

nature. They cite our statement in Lewis that, in Garner v. Jones, "the

Supreme Court ‘foreclosed [a] categorical distinction between a measure

with the force of law,’ on the one hand, and discretionary guidelines, on

the other." Id. at 202 (alteration in original) (quoting Fletcher v. Reilly,

433 F.3d 867, 876 (D.C. Cir. 2006)). But in Lewis we further recognized

the unique role of the Sentencing Guidelines, which, although not "facially

binding," function as "the starting point and the initial benchmark" in fed-

eral sentencing. Id. at 200 & n.8 (quoting Gall v. United States, 552 U.S.

38, 49 (2007)) (internal quotation marks omitted). In addition, our deci-

sion in Warren postdated that of the Supreme Court in Garner. Garner,

529 U.S. 244 (decided Mar. 28, 2000); Warren, 233 F.3d 204 (decided

Nov. 13, 2000). And we recently reiterated the distinction between a mere

change to an administrative policy in effect at the time of the original

BURNETTE v. FAHEY 21

icy creating a significant risk of increased punishment. Their

complaint identifies a variety of changes to parole review pro-

cedures, including the Board’s decisions to cease using a risk

assessment tool, to enlist parole examiners to perform inter-

views, and to vote electronically. But the Inmates have failed

to plead facts showing a causal link between these procedural

changes and a significant risk of extended punishment.

By their terms, these procedures do not impact the length

of the Inmates’ period of imprisonment, so the Inmates must

point to the implementation of the procedures. Although the

Inmates complain that parole-grant rates have decreased since

1995, they have not alleged facts demonstrating that this

decrease may be ascribed to any procedural change. The mere

fact that the Board implemented these procedural changes

during the same multi-year period that the rate decreased does

not produce a plausible inference of a causal connection, par-

ticularly as there are numerous other explanations for the

decreasing parole-grant rate. As the district court noted, some

of this decrease may be understood to reflect the shrinking

pool of eligible offenders, who the Board may have found to

be less suitable for parole. More notably, the Inmates them-

selves press an alternative reason for the declining parole-

offense and the retroactive application of a new statutory or regulatory

rule. See Waddell v. Dep’t of Corr., No. 11-7234, slip op. at 19–20 (4th

Cir. May 25, 2012) (agreeing with the state court that the petitioner’s ex

post facto claim lacked merit because "no legislative or regulatory enact-

ment ever altered" his sentence). We are therefore disinclined to find that

Lewis upset our holding in Warren regarding the applicability of the Ex

Post Facto Clause to the Board’s policies.

But even assuming, as we do here, that the Clause applies to changes

to the Board’s policies and procedures, the Inmates have failed to allege

sufficient facts to establish plausibly that a new Board policy—as opposed

to a mere change in the manner in which the Board exercises its discre-

tion—has produced a substantial risk of increased punishment. Accord-

ingly, we need not fully explore which, if any, of the Board’s changes are

subject to the ex post facto limitation.

22 BURNETTE v. FAHEY

grant rate: they urge that instead of following its statutory

mandate to determine suitability for parole based on the mul-

tifarious factors identified in the Policy Manual, the Board has

adopted a policy of refusing parole to violent offenders based

solely on their offenses. And the complaint cites the Board’s

procedural changes as evidence that the Board is disregarding

other relevant factors.

It is this alleged policy change—the de facto abolition of

discretionary parole—that is at the crux of the Inmates’ com-

plaint. But, as discussed with respect to the Inmates’ due pro-

cess claim, it is implausible based on the facts alleged that the

Board has adopted any such policy. The factual allegations

suggest that the Board has become harsher with respect to

violent offenses, but they do not indicate that the Board has

implemented a de facto prohibition of parole for persons con-

victed of these offenses. In the absence of such facts, we can-

not reasonably infer that the Board is failing to exercise its

discretion as required by state law. See Garner, 529 U.S. at

256.

Ultimately, the Inmates’ complaint supports, at most, the

inference that the Board is exercising its discretion, but that,

in doing so, the Board is taking a stricter view towards violent

offenders than it had in the past. This shift in the manner in

which it exercises its discretion, however, does not implicate

the Ex Post Facto Clause. As the Sixth Circuit has explained,

where the statutory scope of a parole board’s discretion is

unchanged from the time a prisoner committed his offense,

"there was always the possibility the Board would exercise its

discretion in a way that would result in fewer paroles and lon-

ger prison terms." Foster v. Booker, 595 F.3d 353, 362 (6th

Cir. 2010). Inmates may have some ex post facto-protected

interest in the rules that guide and govern the exercise of dis-

cretion, see Garner, 529 U.S. at 253, but they do not have a

protected interest in the exercise of discretion itself. Thus, that

the Board may have decided "to get tougher" on certain

crimes "hardly amount[s] to an ex post facto violation"

BURNETTE v. FAHEY 23

because "it was within the . . . Board’s discretion to get

tougher." Foster, 595 F.3d at 362.

We should not and will not "micromanage[ ]" state parole

systems through the Ex Post Facto Clause. Warren, 233 F.3d

at 208 (quoting Garner, 529 U.S. at 252) (internal quotation

marks omitted). In the instant action, the Inmates have alleged

facts indicating only that, in exercising its discretion, the

Board has opted to adopt a harsher tack with respect to violent

offenders. This is not actionable.

IV.

We are sympathetic to the challenges faced by the Inmates

in bringing these claims and the lack of information about the

Board’s internal workings at their disposal. Nevertheless, they

are not relieved of their obligation under the Iqbal-Twombly

pleading standard to allege facts demonstrating a plausible,

not merely possible, entitlement to relief. Because they have

failed to meet this obligation, dismissal of the complaint was

appropriate. For this reason, we affirm the judgment of the

district court.

AFFIRMED

GREGORY, J., dissenting:

The Court adheres today to a rigidly formalistic view of the

Due Process Clause that provides no real protection for the

well-established liberty interest Virginia inmates have in

parole consideration. For this reason, I respectfully dissent.

I.

The majority and I are in agreement on several points.

There is no independent due process right to parole, e.g.,

Greenholtz v. Inmates of the Neb. Penal & Correctional Com-

plex, 442 U.S. 1, 7 (1979), nor is there one in being consid-

24 BURNETTE v. FAHEY

ered for parole, Hill v. Jackson, 64 F.3d 163 (4th Cir. 1995).

However, a State can create such a liberty interest, id. at 170,

and Virginia has done so here, vesting in its inmates a right

to parole consideration through the passage of its parole stat-

ute, id. Finally, the Due Process Clause requires that the

parole board ("the Board") furnish an inmate with a written

explanation for its denial of parole. E.g., Bloodgood v. Gar-

raghty, 783 F.2d 470, 473 (4th Cir. 1986); Franklin v. Shields,

569 F.2d 784, 800 (4th Cir. 1976) (en banc).

The majority and I part ways on the question of whether the

Due Process Clause provides any additional protections to

inmates, like the Appellants, who have a liberty interest in

parole consideration. While a hyper-literal interpretation of

this Court’s precedent might suggest that nothing beyond a

written explanation is required,1 we have never before held

this to be the case,2 and we should not do so today.

While the majority cites to Franklin v. Shields, Bloodgood

v. Garraghty, and Vann v. Angelone for the proposition that

the Board need only furnish a written explanation for denial,

these cases contemplated the Board doing more than applying

one factor to every case it hears. In Bloodgood we held that

we "will not assume that the Board relied on possibly invalid

1

This interpretation is both hyper-literal and leads to absurd results.

Suppose the Due Process Clause mandates only that the Board furnish a

written explanation for its denial. If that were so, then the Board could

simply print out several hundred copies of a form letter denying parole on

generic grounds (for example, "the nature and circumstances of the

offense") and send them out to each inmate as he or she comes up for

consideration—all without ever looking at the inmate’s file. Such a for-

malistic view of the Due Process Clause cannot be countenanced.

2

In Strader v. Troy, 571 F.2d 1263, 1266 (4th Cir. 1978), we held that

the Board may not consider previous convictions if they were obtained in

violation of the inmate’s right to counsel. While there the Sixth Amend-

ment operated as an independent constraint on the Board, Strader never-

theless demonstrates that the Constitution imposes additional requirements

beyond a written explanation.

BURNETTE v. FAHEY 25

factors" in makings its decisions. Bloodgood, 783 F.2d at 475.

This of course presupposes that there are invalid factors—that

the Due Process Clause requires not just a written explanation

for the denial, but that the denial be based on valid factors. In

Vann, we recognized that parole consideration consists of

more than the rote application of a single factor: "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 con-

dition, attitude, and compatibility with the ‘interests of

society.’" Vann v. Angelone, 73 F.3d 519 (4th Cir. 1996)

(quoting Gaston v. Taylor, 946 F.2d 340, 344 (4th Cir. 1991)).

Similarly, in Bloodgood we said, "The board’s inquiry is not

the legal foundation of some past conviction, but a prediction

of a prisoner’s prospects for a law-abiding life." Bloodgood,

783 F.2d at 473 (citing Franklin, 569 F.2d at 800). Thus we

have implied that the Board must consider at least some fac-

tors beyond the nature of the offense.

I emphasize the distinction between the question of whether

a factor is valid and whether it is sufficient. The nature and

circumstances of the underlying offense is indisputably a

legitimate factor that may be considered, but it is not enough

standing alone. The Due Process Clause requires that the

Board consider additional factors as well. Whether the Due

Process Clause requires that specific additional factors be con-

sidered, it is enough here to note that the Board and the State

of Virginia have substantial discretion in determining how it

will weigh the factors in making the final decision whether to

grant parole. But to hold that the rote use of the nature of the

underlying offense by itself is sufficient transmogrifies the

parole process into an empty formality.

II.

The Appellants’ complaint alleges facts that render plausi-

ble the inference that the Board only considers the nature and

circumstances of the crime in deciding whether to grant or

26 BURNETTE v. FAHEY

deny them parole. See Bell Atl. Corp. v. Twombly, 550 U.S.

544 (2007). Appellants allege that after Virginia’s General

Assembly abolished parole for all newly incarcerated inmates

in 1995, the Board instituted a number of changes to its proce-

dures. Prior to 1995, the Board used a risk assessment tool in

making parole determinations; but after the abolition of parole

the Board discontinued use of the tool. J.A. 21. The Board has

also abandoned its practice of conducting face-to-face inter-

views with parole-eligible inmates. J.A. 23. It has similarly

discouraged wardens, guards, and other prison officials from

providing it with information about eligible inmates, J.A. 23,

and has decreased the frequency with which inmates’ families

appear before it, J.A. 24. The Board no longer meets in person

regularly, but instead circulates electronic files and has its

members cast votes to grant or deny parole electronically. J.A.

23-24. Virginia law requires the Board to establish rules to

govern parole procedure. VA CODE § 53.1-136.1. While

these used to be published in the Virginia Administrative

Code, 14 Va. Reg. No. 17 at 2457 (Apr. 22, 1998), in 1998

the Board repealed those policies and has not replaced them;

instead, it has adopted an informal "policy manual." J.A. 22.

Perhaps most tellingly, the policy manual lists fourteen fac-

tors the Board is to consider in determining whether to grant

parole, with rehabilitative concerns featuring prominently

among them. J.A. 22. Nevertheless, the Appellants were

denied parole in the vast majority of cases for one and only

one reason—the nature and circumstances of the underlying

offense. J.A. 22.3 The majority asserts that the Appellants

have offered "only speculation in support of [their] view" that

they are not being considered for parole. Maj. op. at 17. How-

ever, these significant procedural changes, taken together,

strongly suggest the Board has systematically eliminated the

procedures that would have furnished it with information

3

For example, Sharon Burnette has been denied parole 12 times, and the

sole reason given on each occasion was the "serious nature and circum-

stances of the crime" or words to that effect. J.A. 30-31. Edward Conquest

has been denied parole 22 times, all for the same reason. J.A. 32.

BURNETTE v. FAHEY 27

beyond the nature and circumstances of the underlying

offense. These allegations are sufficient to surmount the rela-

tively low burden of surviving a 12(b)(6) motion to dismiss.

It is true that on rare occasions the Board gave a reason

other than the nature and circumstances of the offense in

denying some of the Appellants parole. But for each Appel-

lant, the Board has relied on the nature and circumstances of

the offense, and no other factor, on at least one occasion.

Thus, assuming there is a constitutional violation when the

Board fails to consider any other reason, see supra Part II,

each Appellant has suffered a constitutional injury on multiple

occasions.

III.

"Fundamental fairness [is] the touchstone of due process."

Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973). In my view,

fundamental fairness in the parole context requires at a mini-

mum that the Board consider at least one factor beyond the

nature of the underlying offense. The facts in the Appellants’

complaint make out a plausible claim that the Board has failed

to comply with this requirement. As such, I would vacate the

district court’s 12(b)(6) dismissal and remand for further pro-

ceedings.