# Carroll E. Wade v. Dave Robinson, Warden > Court of Appeals for the Fourth Circuit · April 22, 2003 · 327 F.3d 328 URL: https://www.frixlaw.com/law-library/cases/9496008 ## Case - **Full name:** Carroll E. WADE, Petitioner-Appellant, v. Dave ROBINSON, Warden, Respondent-Appellee - **Court:** Court of Appeals for the Fourth Circuit - **Decided:** April 22, 2003 - **Citations:** 327 F.3d 328; 2003 U.S. App. LEXIS 7541; 2003 WL 1908735 - **Precedential status:** Published - **Opinion:** Concurrence by Gregory - **Judges:** Luttig, Williams, Gregory - **Cited by:** 43 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9496008 ## How later opinions describe it (automated extraction) - holding that limitation period was triggered under -28 U.S.C. § 2244(d)(1)(D) of the AEDPA on the date an inmate could have discovered the factual predicate of his claim “through public sources” - holding, in a § 2254 action, that statute of limitations “applies to claims challenging any aspect of custody, so long as the petitioner is in custody pursuant to a state court judgment” - rejecting argument that prisoner was "in custody” pursuant to an order of the state parole board (rather than a judgment of a state court), explaining, "Most immediately Wade does find himself, in common parlance, in custody by virtue of the parole board’s decision to revoke h… ## Opinion text GREGORY, Circuit Judge, concurring: I. I concur with the majority’s conclusion on the merits that pursuant to 28 U.S.C. § 2244 (d)(1)(D), Wade’s petition for writ of habeas corpus must be dismissed as untimely. The majority suggests, however, that absent my vote it would not have granted a Certificate of Appealability (“COA”) to consider this procedural issue. See ante, at 330 (commenting that, “Judge Gregory, acting as a single circuit judge, granted a Certificate of Appealability, thus providing us with jurisdiction to address Wade’s petition”). Accordingly, I write separately to explain my decision to grant a COA in this matter. II. The Supreme Court has recently explained that while “the issuance of a COA must not be pro forma or a matter of course,” “[w]e do not require a petitioner to prove, before the issuance of a COA, *334 that some jurists would grant the petition for habeas corpus” on the merits. Miller-El v. Cockrell, — U.S. -, 123 S.Ct. 1029, 1040 , 154 L.Ed.2d 931 (2003). “Indeed, a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. Carroll E. Wade’s petition was denied in the district court on procedural grounds. Therefore, to obtain appellate review of the denial of his petition, Wade first must show “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right.... ” Slack v. McDaniel, 529 U.S. 473, 484 , 120 S.Ct. 1595 , 146 L.Ed.2d 542 (2000). Secondly, he must demonstrate “that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. Because Wade easily satisfies his burden as to both questions, a COA has been granted. A. The substance of Wade’s constitutional claim is that he suffered a denial of his procedural Due Process rights when the Virginia Parole Board revoked his parole and accrued good time credits. As Wade explained in a letter submitted to the Virginia Department of Corrections on March 20, 2000, “I was informed by my counselor [in the prison facility] that I was scheduled to have a final parole revocation hearing. However, I was not afforded this hearing nor did I refuse to be present at the hearing. Subsequent to the previously stated fact, I received a letter from the parole board of their [sic] decision to revoke my parole status.” (J.A, at 20.) It is well-established that “the minimum requirements of due process” for a parole revocation proceeding include the “opportunity to be heard in person and to present witnesses and documentary evidence,” as well as “the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation).... ” Morrissey v. Brewer, 408 U.S. 471 , 92 S.Ct. 2593 , 33 L.Ed.2d 484, 488-89 (1972). Because the documentary evidence contained in the record suggests that these rights might not have been respected, Wade has successfully cleared the first hurdle toward the issuance of a COA. B. Having stated a claim alleging the denial of a constitutional right, Wade must now establish “that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484 , 120 S.Ct. 1595 . The procedural question in this case involves an issue of first impression in this Circuit: whether the limitations period prescribed in 28 U.S.C. § 2244 (d)(1) applies to petitions challenging administrative agency decisions. Addressing this same issue, the Fifth Circuit has concluded, based on a plain reading of the statute, that § 2244(d)(1) “literally applies” to petitions contesting the outcome of prison disciplinary proceedings. Kimbrell v. Cockrell, 311 F.3d 361, 363 (5th Cir.2002). Judges Pos-ner and Easterbrook, however, writing for the Seventh Circuit, have relied on principles of federalism and comity among the States, embodied in the Full Faith and Credit Clause and 28 U.S.C. § 1738 , to reach a contrary result. See Cox v. McBride, 279 F.3d 492 (7th Cir.2002); White v. Indiana Parole Board, 266 F.3d 759, 766 (7th Cir.2001). Like the majority, I find the reasoning of the Fifth Circuit to be ultimately more persuasive. However, in order for a COA to issue, Wade need not show that the Seventh Circuit’s approach is correct. *335 Rather, he simply needs to establish that “reasonable jurists could debate whether ... the petition should have been resolved in a different manner...Slack, 529 U.S. at 484 , 120 S.Ct. 1595 (2000) (quoting Barefoot v. Estelle, 468 U.S. 880 , 893 n. 4, 103 S.Ct. 3383 , 77 L.Ed.2d 1090 (1983)) (emphasis added). Because reasonable jurists from two of our sister circuits have actually disagreed as to the resolution of this issue of statutory construction, Wade obviously has met his burden on the second prong of Slack Accordingly, there can be no doubt that a COA must issue. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9496008. Public record. Not legal advice.