Petition for Writ of Certiorari — Coffin v. Murray

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Bopreme Court, U.S

FILED

- MAR 9 1993

Dib Dietie CLERK |

IN THE

Supreme Court of the United States

October Term, 1992

DEXTER DRAKE COFFIN, III; DOE; and, JOE,

Petitioners,

EDWARD W. MURRAY; E. C. MORRIS;

and, LOU ANN WHITE,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Steven D. Rosenfield Dexter D. Coffin, III

Attomey at Law 707 E. Jefferson Street

917 E. Jefferson Street Charlottesville, VA 22902

Charlottesville, VA 22902 Telephone: (804) 296-3944

Telephone: (804) 296-4139 Petitioner, pro se

VSB No. 16539

Counsel for Petitioners

Doe and Joe

Appellate Printing Services * 523 East Main Street * Richmond, VA 23219 * (800) 642-7789

QUESTIONS PRESENTED

Did The Circuit Court Ignore Stipulated Facts, Make

Incorrect Factual Findings And Then Apply An Incor-

rect Legal Analysis To Those Facts Which Are Ma-

terial To A Just Resolution Of The Case?

Does The Fourth Circuit’s Judgment Here Conflict

With The Established Precedent Of This Court And

With Recent Judgments Of Other Circuits?

Are The Issues Presented Herein Sufficiently Impor-

tant To Warrant This Court’s Review?

Did The Court Below Err In Concluding That The

DOC’s Application Of The Credits In Issue Is Con-

sistent With The Legislative Intent?

LIST OF PARTIES

The parties to the proceedings below were the petitioners, Dexter

D. Coffin, Il, a former inmate of the Virginia Department of Correc-

tions; Inmate “Doe”; and, Inmate “Joe”.! The respondents were Edward

W. Murray, Director of the Virginia Department of Corrections (DOC);

E. C. Morris, Deputy Director, Division of Adult Institutions, DOC; Lou

Anh White, Manager, Court and Legal Services, DOC, and, Unknown

Administrative Personnel, DOC. The respondents were each sued in their

individual capacities.

The parties before the Court remain the same except with respect

to the Unknown Administrative Personnel who the petitioners view as

unnecessary to the consideration and resolution of their petition.

‘ For reasons related to their security, the pseudonyms “Doe” and “Joe” were di-

rected to be substituted for two petitioners’ actual names by Order of the Cir-

cuit Court dated January 19, 1993.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ............:sssscccsesssesssssceeeessssssesenees i

LIST OF PARTIES .........cccccscccccocccscccscccscccsesessseseccnsesensesenees ii

TABLE OF AUTHORITIES .............ccsssessceeseessessrerereesenseeees iv

JURISDICTION ...ccsccsscccsssccssscsccsscccccsccscsssssscosesecsonssescscencees 2

CONSTITUTIONAL PROVISIONS INVOLVED ...............+. 2

STATUTES INVOLVED ............ccccsssoccssscsscsensrreseessecsccssnees 3

STATEMENT OF THE CASE ............c:ssesceessssseeeeessseeeeeeees 4

REASONS FOR GRANTING THE WRIT .............::::eeeeeeeee: 9

I. The Circuit Court Ignored Stipulated Facts, Made In-

correct Factual Findings And Then Applied An Incor-

rect Legal Analysis To Those Facts Which Are Ma-

terial To A Just Resolution Of The Case.................005 9

IL. The Fourth Circuit’s Decision Here Does Conflict With

The Established Precedent Of This Court And With

Recent Judgments In Other Circuits ..............0ssesesseeeeees 13

III. The Issues Presented Herein Are Sufficiently

Important To Warrant This Court’s Review..............++. 14

IV. The Court Below Erred In Concluding That The

DOC’s Application Of The Credits In Issue Is Con-

sistent With The Legislative Intent ...................sseeeeeeeees 16

APPENDIX (Opinion and Judgment of the Court of

Appeals; Final Order of the District Court,

and, Stipulated Facts of the Parties).................. la

iii

TABLE OF AUTHORITIES

Arkansas v. Oklahoma, S03 U.S. ___ (1992) ......csecsssseeeseseees 14

Bell v. Wolfish, 441 U.S. S20 (1979) ....ccccccrccrrssrcscocccsnessssees 11

Block v. Rutherford, 468 U.S. 576 (1984) .....::ccccssscccseseseeeeees 11

Board of Regents v. Roth, 408 U.S. 564 (1972) ........::cceeseees 15

Cajun Elec. Power Coop. v. F.E.R.C.,

SS Fe TERE GE, Ge BORD wives ccenescccssecasnicicnvensene 13

City of St. Louis v. Dept. of Trans.,

936 F.2d 1258 (8th Cir. 1991)...............cscscsevee nial 13

Ct. Board of Pardons v. Dumschat, 452 U.S. 458 (1981) ..... 15

Cruzan v. Dir, Mo. Health Dept., 497 U.S. ___ (1990) ....... 15

Detsel By Detsel v. Sullivan,

I ae Oe CA Ge BUND aniccecescnsiccnccennicsnsssenndinieesnnnies 13

Dole v. United Steelworkers of America,

Pe as i cen nbenerasesnisincinnasensdnommenenineuteneionenn 18

Franklin v. Shields, 569 F.2d 784 (4th Cir. 1977) ...........0008. 13

Gozlon-Peretz v. United States, 498 U.S. ___ (1991) ............ 17

Greater Orlando Aviation Authority v. FAA.,

ee Oe A CR ieinntenstanincedniniernseiincntints 14

Harward v. Comm., 229 Va. 363 (1985) .......ccccscseccessseeeeeeees 17

Hayes v. Thompson, 726 F.2d 1015 (4th Cir. 1984).............. 13

Hewitt v. Helms, 459 U.S. 460 (1983) .........c.ccscscesssssssseeees 15

Jones v. N. C. Prisoners’ Union, 433 U.S. 119 (1977) ......... 9

Lee v. Winston, 717 F.2d 888 (4th Cir. 1984),

OA. €7O U.S. TS3 (19BS) ncccrccsrcoccsoscrssosesccvvensvencsvevsdsees 12

McGinnis v. Royster, 410 U.S. 263 (1973)........ccccseeeeesereeeees 8

McNeil v. Dir., Patuxent Inst., 407 U.S. 245 (1972) ........00 12

Miller v. Florida, 482 U.S. 423 (1987) .......cccccssecceeesreeeeeeeens 12

Pell v. Procunier, 417 U.S. 817 (1974) .....:cccccssececsessreeesereeees 11

Pennhurst State School & Hospital v. Halderman,

4531 US. 1 (1961) ..recccccsscoresrsossesorssssesessseressenevensoseneresees 18

Peyton v. Williams, 206 Va. S9S (1965) .......::cccseeeeerceeseeeenees 8

Philbrook v. Glodgett, 421 U.S. 707 (1975) ......::cccsssseseeseeeees 17

Pilot Life Ins. Co. v. Dedaux, 481 U.S. 41 (1987) ..........6 18

Pope v. Chew, 521 F.2d 400 (4th Cir. 1975) ......:csecceesceeeeees 17

Preiser v. Rodriquez, 411 U.S. 475 (1973) .....cccssccsssseeeeereeees 12

Procunier v. Martinez, 416 U.S. 396 (1974) ......ccccseccceeeseeeees 11

Rivera-Cruz v. I.N.S., 948 F.2d 962 (Sth Cir. 1992)............+. 13

Rodriquez v. United States, 480 U.S. 522 (1987) .......::::s00+ 18

Russello v. United States, 464 U.S. 16 (1983)........::cceeeeeees 18

Schwartz v. Muncy, 834 F.2d 396 (4th Cir. 1987) ..........000+ 13

S. E. C. v. Sloan, 436 U.S. 103 (1978)........0..ccocssesscesscsseees 9

S. I. A. v. Board of Governors, 468 U.S. 137 (1984) ........... 19

Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983) ......c..sses000+. 12

Transpacific v. Federal Maritime Com’n.,

Be ee He CTE Gate. RED sncsscsesencenssssnenessccsssensestacencs 13

Weaver v. Graham, 450 U.S. 24 (1981) .......ccccccccsseesesseeees 12

Wolff v. McDonnell, 418 U.S. 539 (1974) ......ccccccseseessseeeeees 10

Zapata Haynie Corp. v. Barnard,

Be ee Bee CE CO, BGDE) nnccnnnscesssnnscnsssssesnssonnensiscessns 13

Zelega v. I.N.S., 916 F.2d 1257 (7th Cir. 1990) ....... eee 13

VIRGINIA CODES:

Section 53.1-5, Code Of Virginia ...........0ccsesserssssosseseses passim

Section 53.1-159, Code of Virginia..................cssseceeeees passim

Section 53.1-191, Code of Virginia .................cccsssesesees passim

Section 53.1-199, Code Of Vinginia............ssssscesceresssssees passim

Section 53.1-201, Code of Virginia .............cceseseeeeeees passim

COURT RULES:

Rule 1:1, Rules of the Supreme Court of Virginia ........... 6

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1992

DEXTER DRAKE COFFIN, III;

DOE; and JOE,

Petitioners,

VS.

EDWARD W. MURRAY; E. C. MORRIS;

and, LOU ANN WHITE,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

The petitioners Dexter D. Coffin, Ii, Doe, and Joe respectfully pray

that a writ of certiorari issue to review the judgment and opinion of the

United States Court of Appeals for the Fourth Circuit entered in the

above-entitled proceedings on December 16, 1992.

OPINIONS BELOW

The opinion of the Court of Appeals for the Fourth Circuit has been

ordered published and is reprinted in the appendix hereto, p. 1a, infra.

The Final Order of the United States District Court for the Western

District of Virginia (Crigler, M.J.) has not been reported. It is reprinted

in the appendix hereto, p. 15a, infra.

JURISDICTION

Invoking federal jurisdiction under both Title 28, United States Code,

Section 2254 and 42 U.S.C. § 1983, the petitioners brought this suit

in the Western District Court of Virginia and alleged violations, inter

alia, of their Fourteenth Amendment rights to due process and equal

protection of the laws. Joining the respondents, the petitioners consented

to the jurisdiction of a United States Magistrate Judge. On May 5, 1992

The Wester District Court denied the respondents’ motion for summary

judgment, granted, in part, the petitioner’s motion for partial summary

judgment; granted the writ as prayed for, and entered relief of a declara-

tory and injunctive nature against the respondents under the civil rights

Statute, but rejected the petitioners’ claim for monetary damages.

All parties to the cause noted appeals of differing aspects of the Mag-

istrate Judge’s decision. On December 16, 1992 a panel of the Fourth

Circuit entered a judgment and opinion reversing the Magistrate Judge’s

decision favoring the petitioners and dismissing the appeal the petition-

ers perfected. See p. 1a, infra. No petition for rehearing was sought.

The jurisdiction of this Court to review the judgment of the Fourth

Circuit is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

Amendment XIV, § 1. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens of the United

States and of the state wherein they reside. No state shall make or enforce

any law which shall abridge the privileges or immunities of citizens of

the United States; nor shall any State deprive any person of life, liberty

or property without due process of law; nor deny any person within its

jurisdiction the equal protection of the laws.

STATUTES INVOLVED

28 U.S.C. § 2254(a). State custody; remedies in Federal courts

The Supreme Court, a Justice thereof, a circuit judge, or a district

court shall entertain an application for a writ of habeas corpus in behalf

of a person in custody pursuant to the judgment of a State court only

on the ground that he is in custody in violation of the Constitution or

laws or treaties of the United States.

42 U.S.C. § 1983. Civil action for deprivation of rights

Every person who, under color of any statute, ordinance, regulation,

custom, or usage of any State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of the United States or

other person Within the jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws, shall be

liable to the party injured in an action at law, suit in equity, or other

proper proceeding for redress. For the purposes of this section, any Act

of Congress applicable exclusively to the District of Columbia shall be

considered to be a statute of the District of Columbia.

Va. Code Ann. § 53.1-5. Powers and duties of Board.- The Board shall

have the following powers and duties:

1 teeae

y a ease

3 oe eee

4. To monitor the activities and goals of the Department and its

effectiveness in implementing the standards and goals of the Board.

4 eeeee

6. To make, adopt and promulgate such rules and regulations as

may be necessary to carry out the provisions of this title and other laws

of the Commonwealth administered by the Director or the Department,

and

7 e444

Va. Code Ann. § 53.1-191 (1990). Credits allowed in cases of inju-

ries to or extraordinary services performed by prisoners;

nonforfeiture of credits hereunder.- The Board, with the consent of

the Governor, may allow to any prisoner confined in a state correctional

facility a credit toward his term of confinement if he (i) renders assis-

tance in preventing the escape of another prisoner or in the apprehen-

sion of an escaped prisoner, (ii) gives a blood donation to another

prisoner, (iii) voluntarily or at the instance of a prison official renders

other extraordinary services; or (iv) suffers bodily injury while in the

prison system. The Board shall determine the amount of any such credit

for each such service or injury. In unusual circumstances a prisoner may

receive a credit for donating blood, under regulations prescribed by the

Board, to blood banks licensed by or subject to regulation of the State

Board of Health.

Except as provided hereinafter, any credit allowed under the pro-

visions of this section shall be applied as provided in § 53.1-199 ... One-

half of such credit shall be applied to reduce the period of time such

prisoner shall serve before being eligible for parole.

Credits allowed under the provisions of this section may not be

forfeited under § 53.1-189.

Va. Code Ann. § 53.1-199 (1990). Eligibility for good conduct al-

. lowance; application.- Every person who, ... , has been convicted of

a felony ... may be entitled to good conduct allowance not to exceed the

amount set forth in § 53.1-201. Such good conduct allowance shall be

applied to reduce the person’s maximum term of confinement while he

is confined in any state correctional facility. One-half of the credit al-

lowed under the provisions of § 53.1-201 shall be applied to reduce the

period of time a person shall serve before being eligible for parole.

... Additional good conduct credits may be approved by the Board

for such persons in accordance with § 53.1-191.

STATEMENT OF THE CASE

Most individuals serving felony sentences in the Commonwealth of

Virginia are entitled to participate in the state’s Good Conduct Allow-

ance (GCA) program. Adopted by the Virginia General Assembly ef-

fective July 1, 198i, the GCA scheme offers an empirical schedule of

incentives whereby, in return for increasingly positive conduct, prison-

ers may earn “good time” at rates ranging from no extra days’ credit

for each month confined to as much as 30 extra days’ credit for every

30 days actually served. See § 53.i-201, Code of Virginia (1990).* Ad-

ditionally, should a prisoner perform an extraordinary service he could

be recommended to the Virginia Board of Corrections for an extraor-

dinary credit which, if approved by the Board of Corrections and the

Governor consents, would be granted. See § 53.1-191, Code of Virginia

(1990); Appendix, at 29a. The Board of Corrections (the Board), it should

be noted, is an agency which is statutorily independent of the DOC. Com-

pare, § 53.1-2, et seq., Code of Virginia (1990), with § 53.1-8, et seq.,

Code of Virginia (1990). “Both extraordinary (§53.1-191) and GCA

(§53.1-201) credits directly affect the DOC’s computation of a prisoner’s

mandatory parole release date (MPRD).” Appendix, at 6a.

Inmates serving active prison sentences in Virginia may be released

from confinement either by having been granted discretionary parole, see

§ 53.1-136, Code of Virginia (1990), or by completing service of their

sentences and achieving statutory or, as it is most often called, manda-

tory parole release. Virginia Code Ann. § 53.1-159.

On July 16, 1990 each of the petitioners was awarded a 36 month

extraordinary credit pursuant to § 53.1-191, Code of Virginia (1990),

in recognition of meritorious service each provided to the Commonwealth

of Virginia and to the State of Maryland. Appendix, at 3a. It is undis-

puted that, on July 16, 1990, each of the petitioners had also enjoyed

long-term assignments to GCA Level I - the highest rate of earning good-

time credit under Virginia law. Va. Code Ann. § 53.1-201(1).*Appen-

dix, at 27a. At the time of the extraordinary awards petitioner Coffin

had long since been released on supervised parole, inmate Doe had passed

his parole eligibility date but remained confined, and inmate Joe had not

then achieved either his parole eligibility or mandatory parole release date.

Incidental to oral argument- complete with illustrative aids, see

Appendix 27a to 30a, on then outstanding dispositive motions filed with

the trial court both by the petitioners and the respondents, see supra, at

2, the parties filed stipulated facts which are reprinted in the appendix

hereto, at 18a, infra. These stipulated facts focus on the operation and

application of the state statutes under which the various credits are as-

2 Prisoners serving sentences of a mandatory nature or of life imprisonment are

ineligible for these credits as are those prisoners sentenced to death.

3 The terms “good-time”, “good-conduct”, “gain time”, and “GCA” shail be used

interchangeably herein.

signed and applied, parole release, and, moreover, these stipulated facts

comprise those facts controlling the case sub judice.

For example it was stipulated among the parties, and the court below

noted, that whenever a prisoner’s GCA level (or, sometimes called

“ciass”) is altered, the inmate retains those credits earned during the

course of his assignment to the previous class. Appendix, at 21a, 1 31;

and 7a, n.8. In relevant part, § 53.1-191, Code of Virginia (1990), spe-

cifically provides that credits awarded thereunder are to be applied in

the same manner as are those eamed under § 53.1-201. See e.g., Appendix

at 6a, n. 6. The respondents, on the other hand, now contended that §

53.1-191 credits are to be applied toward the gross total sentence origi-

nally imposed upon the prisoner and the court below itself concurred

adopting the respondents’ view that the term “maximum term of con-

finement” contained in § 53.1-199 is synonymous with “original sen-

tence”. Appendix, at 10a.‘ Bui see Appendix, at 21a, #31

As a practical matter, when the respondents received notification

from the Board and the Executive of the awards to the petitioners, revised

PED and MPRD dates were calculated and identified. Appendix, at 3a.

Because the petitioners were already assigned to GCA Level I, the awards

were multiplied by a “projection factor” of .S which resulted in their

respective MPRD advancing by a total of only 18 months. See gener-

ally, Appendix at 8a. Thus, the crux of the petitioners’ lawsuit was that

the respondents’ method of application in fact deprived each petitioner

of one-half (.5) of the credit awarded by the Board and the Executive.

The petitioners claimed that this methodology violated their due process

and equal protection rights under the Fourteenth Amendment to the United

States Consiitution. In regard to the former the petitioners asserted that

the application of the credits was effectuated without affording them an

Opportunity to be heard and that the respondents’ method of application

was contrary to legislative intent and the clear language employed in the

relevant statute; contrary to the respondents’ stated policy; and at odds

with facts stipulated between the parties. With regard to the latter, the

petitioners noted that the respondents’ method of application respecting

extraordinary credits effectively penalized them for being assigned to

* Indeed the record reflects that the respondents and the court below most often

referred to these credits as a “sentence reduction”. But Rule 1:1, Rules of the

Supreme Court of Virginia (1990), provides that the trial court loses jurisdic-

tion to modify sentences 21 days after imposition. Cf., Appendix, at 13a, n.17.

GCA Level I. In support of this contention the petitioners demonstrated

that if they were viewed next to an inmate whose behavior and adjust-

ment were so poor that the individual had forfeited all of his accumu-

lated good-time credit and was then assigned to GCA Level IV, the

uncooperative inmate would benefit from the full 36 month credit as his

award would not be multiplied by any projection factor. Va. Code Ann.

§§ 53.1-159; 53.1-201(4). Put differently if two inmates, one in GCA

Level IV and the other in GCA Level I and both with exactly five years

remaining until their respective mandatory parol. release dates, each

received a three year § 53.1-191 credit the inmate in GCA Level IV would

be released from custody 18 months sooner than would the inmate in

GCA Level I whose adjustment and conduct, by statutory definition, had

been deemed “exemplary”. Virginia Code Ann. § 53.1-201(1); Compare,

Appendix, at 12a, with Appendix, at 28a.

The petitioners also demonstrated that, because the respondents

uniquely subtract § 53.1-191 credits from the original sentence imposed

as opposed to subtraction from the then-identified MPRD as are § 53.1-

201 credits, if an inmate were to receive two separate 1-year § 53.1-

191 credits the individual would benefit from only the first of the two

awards since application of the second § 53.1-191 credit would be merely

repetitive of the first calculation and, consequently, of no effect on the

inmate’s MPRD. Appendix, at 30a.

As noted, supra, at 2 , on May 5, 1992 the trial court found in favor

of the petitioners upon their claims presented pursuant to 28 U.S.C. §

2254 and ordered that a writ issue. The trial court also granted the

petitioners both declaratory and injunctive relief pursuant to their claims

brought under 42 U.S.C. § 1983, but declined to award monetary dam-

ages concluding instead that the respondents were entitled to qualified

immunity.

The respondents noted their appeal of the trial court’s judgment to

which the petitioners cross-appealed relative to the qualified immunity

question. Oral argument was held before the court below on October

2, 1992 and a final decision, subsequently amended as noted supra, at

ii, was entered on December 16, 1992.

In explaining its decision, the Fourth Circuit stated

[a]s a federal tribunal, we must be especially careful

not to interfere unnecessarily with the administration of

Virginia’s prison system. If the DOC has rationally

implemented the relevant statutes, the constitutionality

of which is not questioned, we must defer to its inter-

pretation. See Peyton v. Williams, 206 Va. 595, 145

S.E2d 147, 151 (1965) (“The elementary rule of statu-

tory interpretation is that the construction accorded a

State statute by public officials charged with its admin-

istration and enforcement is entitled to be given great

weight by the court{s].”); see also McGinnis v. Royster,

410 U.S. 263 (1973); Wolff v. McDonnell, 418 U.S.

539, 557 (1974) (state prison good conduct credit stat-

ute created rights that could not be arbitrarily abrogated,

but those rights are strictly defined by the statute that

provided for them). Appendix, at 10a.

Predicated upon this analysis, the court below concluded that

the DOC is well within in its discretion as the imple-

menting agency of Va. Code §§ 53.1-191, 53.1-199

in interpreting these provisions in the manner that it

has. [bid. (emphasis added)

The court below also noted the DOC’s practical application:

[fjor example, as a prisoner earns GCA credits, the

DOC recalculates his MPRD by “subtracting” from

the prisoner’s initial MPRD the sum of credits already

earned and the estimated number of credits the pris-

oner would earn were he to remain in the same GCA

class for the duration of his confinement. Appendix,

at 6a. (emphasis added)

The petitioners claim, iter alia, that the court below unnecessarily

expanded the time-honored rule of deference to agency statutory interpre-

tation; that the disparity in the respondents’ method of applying §§ 53.1-

191 and 53.1-201 credits is unsupported by law and inapposite with state

Statutory command; and, that their conduct was (a) unconstitutional under

the framework of developed federal case law and the relevant statutes

and, (b) contrary to the respondents’ stated policy and Stipulated Fact

Nos. 31 and 46. See, Appendix, at 21a-22a.

REASONS FOR GRANTING THE WRIT

Were the facts of this matter constrained to the simple question of

how three former and present convicts should have applied extraordi-

nary good-time awarded to them, the petitioners concede that seeking

United States Supreme Court consideration would be inappropriate.

As will hereinafter be demonstrated, however, the legal principles

applied by the court below to the facts of the case serve to expand a

rule of law which expansion is contrary to precedent established by this

Court and the majority of the Circuits. Unless reconsidered, this revised

tule of law will have far-reaching negative repercussions in a myriad

of matters.

The Circuit Court Ignored Stipulated Facts,

Made Incorrect Factual Findings And Then

Applied An Incorrect Legal Analysis To Those

Facts Which Are Material To A Just Resolution

Of The Case.

In analyzing the facts of this case the court below stated that its focus

was an inquiry into whether the DOC’s implementation and adminis-

tration of the statute in issue was “rational”. Appendix, at 10a. Because

the court answered those questions affirmatively, and since no challenge

to the constiiutionality of the statute was advanced, the court declared

that the DOC was well within its province relative to the Statutory

interpretation it made. Inarguably that interpretation -authorized and

constitutional or not- resulted in each petitioner forfeiting one-half (.5),

or 18 months, of the 36 month credit awarded to him by the Board.

As a general principle courts are required to give deference to the

interpretation of statutes made by implementing and administering agen-

Cies or entities. Procunier v. Martinez, 416 U.S. 396, 404 (1974); Jones

v. North Carolina Prisoners’ Union, 433 U.S. 119, 126 (1977). On

the other hand, and presuming consistent and longstanding application

exists, the deference accorded agency officials is neither blind nor reaches

the level of autonomous authority precluding review by the courts. This

Court has noted the added responsibility of determining whether the

practice is consistent with the agency’s statutory authority. Securities

& Exchange Comm. v. Sloan, 436 U.S. 103, 118 (1978). Here it is not

given this agency’s express and stipulated lack of statutory authority.

As noted, supra, at 5-6, incidental to consideration of their dispositive

motions and at the direction of the trial court, the parties to the cause

filed stipulated facts which have been reprinted in the Appendix com-

mencing at 18a. It is those stipulated facts which control the law of the

case.

In pertinent part, Supulated Fact No. 46 states that:

(n)either the VDOC nor its employees, has control over

credits awarded to inmates by the Board of Correc-

tions under Section 53.1-191 ... Appendix, at 22a.

(emphasis added).

By statute the Virginia General Assembly has vested the Board of

Corrections with the authority to promulgate rules and policies relative

to the administration of the DOC, which includes the policy respecting

§ 53.1-191 - a statute, by the language employed, that already is solely

within the Board’s discretion. Va. Code Ann. §§ 53.1-5(6); 53.1-191.

The respondents here are neither employees nor agents of the Board; con-

sequently, their interpretation of the relevant statute is not entitled to

deference as a matter of existing law. This is so simply because it is

only the Board of Corrections which, by statute, is the implementing and

administering agency. Compare, § 53.1-191 with Appendix, at 10a. Only

the Board may therefore claim deference.

The second material fact upon which the court below erred related

to having accorded deference at all. In matters concerning prison admin-

istration and management, it is settled law that deference is appropriate

with respect to issues of institutional security, internal order, and dis-

cipline - none of which are present here.

Where important constitutional interests are in issue, the courts are

under a mandate to identify the “procedures (which are) appropriate under

the circumstances to insure that the state-created right is not arbitrarily

abrogated.” Wolff v. McDonnell, 418 U.S. 539, 557 (1974).° The

“rational basis” test is generally only appropriate in cases where fun-

damental rights and suspect classifications are not in issue. McGinnis °

* Here the petitioners claim a federal constitutional liberty interest to the credits

in issue only upon the award in light of the discretionary language employed

by the Virginia General Assembly in § 53.1-191.

ne rr need rn eee

v. Royster, 410 U.S. 263 (1973). In McGinnis, a case upon which the

court below relied in reversing the trial court, this Court was confronted

with a state law which proscribed the award of good-time credits to

confined pre-trial detainees which arose because the stated purpose of

awarding good-time in New York is to acknowledge a prisoner’s per-

formance toward an individual goal of rehabilitation which is itself not

an objective with those presumed innocent of crime and awaiting trial.

At heart in the policy of according deference to prison administra-

tors the Court, in Procunier v. Martinez, 416 U.S. 396 (1974), noted

that “[p}rison administrators are responsible for maintaining intemal order

and discipline, for securing their institutions against unauthorized access

or escape, and for rehabilitating ... the inmates placed in their custody.”

Id., at 404. Ten Terms later in Block v. Rutherford, 468 U.S. 576, 591

(1984), the Court stated

(w)e reaffirm that ‘proper deference to the informed

discretion of prison authorities demands that they, and

not the courts, make the difficult judgments which

reconcile conflicting claims affecting the security of the

institution, the welfare of the prison staff, and the

property rights of the detainees.’ (emphasis added,

Citations omitted).

Consequently, “[p]rison administrators ... should be accorded wide-

ranging deference in the adoption and execution of policy and practices

that in their judgment are needed to preserve internal order and disci-

pline and to maintain institutional security.” Bell v. Wolfish, 441 U.S.

520, 547 (1979) (emphasis added).

But in further articulating the general policy of deference to the

expertise of prison administrators the Court emphasized in Pell v.

Procunier, 417 U.S. 817 (1974), that “(c)ourts cannot, of course, ab-

dicate their constitutional responsibility to delineate and protect funda-

mental liberties.” Id., at 827. At issue in Pell was consideration of a prison

restriction relating to in-person prisoner-press interviews which created

institutional security concerns. At issue in the case at bar is a substan-

tial amount of good-time credit which itself has virtually no effect on

institutional security, order or discipline. For this reason combined with

the fact that the respondents have no statutory “judgment” to exercise

under § 53.1-191, Bell v. Wolfish, supra, in every real sense of the terms,

once awarded, § 53.1-191 credits are non-discretionary, non-reducible,

and non-forfeitable over which the respondents here long ago stipulated

to having no control. Appendix, at 22a, #46.

In Weaver v. Graham, 450 U.S. 24 (1981), the Court reversed a

Supreme Court of Florida decision holding that a revised “gain time”

Statute was applicable to one already serving his sentence and earning

credits under the previous system. More recently the Court reversed

another Supreme Court of Florida decision which applied a revised

sentencing statute to one convicted of crimes prior to the statute’s ef-

fective date. Miller v. Florida, 482 U.S. 423 (1987). In each of these

cases the state agency’s interpretation of the statute in question, although

certainly not constitutional, was arguably “rational”.

Indeed if the “rational basis” test were the correct inquiry for cases

involving federal constitutionally-protected interests relating to the ac-

cumulation or forfeiture of good time, the incidents of federal court review

and consideration of such cases would essentially be all but non-exis-

tent. This is so simply because experienced agency officials and creative

counsel could almost always muster a “rational basis” defense.

Thus where, as here, the issues presented relate to the fact or duration

of confinement resort to the federal courts, after the exhaustion of state

remedies, has been held appropriate for a state prisoner under 28 U.S.C.

§ 2254. Preiser v. Rodriquez, 411 U.S. 475 (1973); Wolff v. McDonnell,

supra, 418 U.S. at 554. And where damages are also sought, the pre-

sentation of a mixed § 1983/§ 2254 action is likewise appropriate. Lee

v. Winston, 717 F.2d 888, affirmed, 470 U.S. 753 (1985). See also Todd

v. Baskerville, 712 F.2d 70, 72 (4th Cir. 1983); Preiser, supra, 411 U.S.

at 494; and, Wolff, supra, 418 U.S. at 554-55.

Traditionally, this Court has not hesitated to review the decisions

of prison officials where important constitutional questions regarding

good-time credits are at issue, see e.g., Weaver v. Graham, supra; Wolff

v. McDonnell, supra; and, Preiser v. Rodriquez, supra, for it is axiom-

atic that those who have completed their sentences, whether by service,

credits of time, or both, are entitled to be released from confinement.

McNeil v. Director, Patuxent Institution, 407 U.S. 2A5 (1972). Depriving

these petitioners of 18 months of their extraordinary good-time credit °

necessarily results in a contrived delay of their respective discharge from

custody, thus implicating grave constitutional concerns both for these

petitioners and for all those in custody who earn good-time credits against

their sentences.

II.

The Fourth Circuit’s Decision Here Does Conflict

With The Established Precedent Of This Court And

With Recent Judgments Of Other Circuits.

Interestingly the Fourth Circuit has itself recently recognized and

discharged its responsibilities relative to considering an agency decision

which implicated federally-protected interests without applying the “ra-

tional basis” test applied here. Zapata Haynie Corp. v. Barnard, 933

F.2d 256 (1991). The Zapata court specifically noted its responsibility

to “review” decisions made by employees of state agencies which im-

pact upon the protected federal rights of individuals. In fact Zapata

follows a long line of Fourth Circuit cases premised upon incorrect

Statutory interpretation by a state agency that directly effects individual

constitutional guarantees. Cf. Schwartz v. Muncy, 834 F.2d 396 (4th

Cir. 1987) (ex post facto application of parole eligibility statute uncon-

Stitutional); Franklin v. Shields, 569 F.2d 784 (4th Cir. 1977), cert.

denied, 435 U.S. 1003 (1978) (parole board required to furnish inmate

writien reasons for denial of discretionary release); and, Hayes v. Thomp-

son, 726 F.2d 1015 (4th Cir. 1984) (reclassification of inmate to

maximum security status by institutional classification committee may

require procedural safeguards if state regulations create protected inter-

ests). The Fourth Circuit did not apply the “rational basis” test in ana-

lyzing any of these cases.

The majority of circuits lately have also concluded that the defer-

ence requirement does not prohibit them from reviewing cases involving

State agency interpretation of statutes that implicate constitutional inter-

ests. Compare e.g., Cajun Elec. Power Coop. v. F.E.R.C., 924 F.2d 1132

(D.C. Cir 1991) (remand appropriate where agency determination de-

pends upon faulty claim); Detsel By Detsel v. Sullivan, 895 F.2d 58,

63 (2d Cir. 1990) (deference due agency only where it had ‘articulated

a logical basis for their decisions, including a rational connection between

the facts found and the choices made.””). (citations omitted); Rivera-Cruz

v. I.N.S., 948 F.2d 962 (Sth Cir. 1992); Zelega v. ILN.S., 916 F.2d 1257

(7th Cir. 1990) (review is de novo where Immigration Appeals Board

has interpreted the Immigration Act); City of St Louis v. Dept. of Trans.,

936 F.2d 1258 (8th Cir. 1991) (parties seeking review of agency de-

cision required to show, iter alia, an injury from the decision); Transpa-

cific v. Federal Maritime Com’n., 951 F.2d 950 (9th Cir. 1991) (focus

of inquiry is whether agency’s interpretation based on a permissible

construction of the statute); and, Greater Orlando Aviation Authority

v. FAA., 939 F.2d 954, 958 (11th Cir. 1991) (court required to “look

at the record in its entirety, including the body of evidence opposed to

the [agency’s] view.”).

The decision entered below also conflicts with this Court’s recent

precedent. In Arkansas v. Oklahoma, 503 U.S. __, 117 L Ed 2d 239

(1992), for example, the Court noted established law that “[a] court

reviewing an agency’s adjudicative action should accept the agency’s

factual findings if those findings are supported by substantial evidence

on the record as a whole.” 117 L Ed 2d at 259 (emphasis as in origi-

nal). In the case at bar the trial court’s judgment was reversed and the

respondents’ arguments accepted even though the respondents earlier

stipulated that neither they nor the DOC had statutory authority relative

to § 53.1-191 credits; the court below failed to point to the existence

of any rule or regulation respecting application of § 53.1-191 credits,

see § 53.1-5, Code of Virginia (1990); and, to accommodate reversal

of the trial court’s judgment, the court below stretched the policy of

according deference to prison administrator’s statutory interpretations

beyond areas relating to institutional security and discipline.

It is apparent that the “rational basis” test employed by the court

below in the context of this case is not only novel, but an application

for which there exists no consistency or support either inside or outside

the Fourth Circuit. The intermediate court’s decision in the context of

the facts presented in this case creates a conflict among the circuits by

announcing the expansion of a time-honored federal policy relative to

the review of prison official’s interpretation of rules and law affecting

institutional security and discipline.

III.

The Issues Presented Herein Are Sufficiently

Important to Warrant This Court’s Review.

Since time immemorial it has been unacceptable that agency deci-

sions affecting important federal constitutional protections and rights of

individuals may be considered and reviewed by the federal courts sitting

in different jurisdictions under disparate rules and tests. Such circum-

f 14

Stances can only lead to inconsistent results and, perhaps ultimately, to

unnecessary confusion.

If, for example, the “rational basis” test were the law of the land,

it is entirely possible that this Court would never have confronted the

facts presented by such cases as Board of Regents v. Roth, 408 U.S.

564 (1972); Bell v. Wolfish, 441 U.S. 520 (1979); Hewitt v. Helms,

459 U.S. 460 (1983); or, Cruzan v. Director, Missouri Health Dept.,

497 U.S. __, 111 L Ed 2d 224 (1990), to identify but a few.

In Roth the Court had occasion to address the question of whether

a non-tenured college professor had a “claim of entitlement” to renewal

of his teaching contract. Both Bell and Hewitt resolved important ques-

tions incidental to the confinement of individuals. In the former case the

Court addressed issues presented concerning the punishment of pre-trial

detainees, while in Hewitt the central question presented was whether,

in light of explicitly mandatory language incorporated in the state stat-

ute there under review, Pennsylvania prisoners enjoyed a constitution-

ally protected interest in remaining free of in-prison detention or segre-

gation. Contrasting Hewitt, in Connecticut Board of Pardons v.

Dumschat, 452 U.S. 458 (1981), the Court concluded that state pris-

oners did not have a protected interest in the commutation of their sen-

tences owing to the absence of mandatory language in that statute.

And in Cruzan the focus was, inter alia, the petitioner’s right to

die which was frustrated by the language employed in Mo Rev Stat §

459.010, et seq. Though the patient may indeed have previously expressed

a desire that extraordinary life-saving measures not be employed when

it appeared likely that her recovery was doubtful, the Court affirmed a

Supreme Court of Missouri decision declining to permit the termination

of Ms. Cruzan’s medical and nutritional treatment. It is certainly beyond

peradventure that the argument on both sides of the controversy had merit.

If, however, the courts were precluded from considering the case because

of the “rational basis” test, unresolved questions might continue to lin-

ger that could have a deleterious affect on society.

Central to the correct factual disposition of this case it is important

to note that the Fourth Circuit failed to apply key stipulated facts. When,

for example, a prisoner’s GCA class is accelerated, the parties agreed

before the trial court thai the prisoner retains the credits he earned in

the prior class assignment and the new credit rate earned by way of the

acceleration “commence(s) on the date the increase in GCA is made ef-

fective.” Appendix, at 21a, #31. This is a crucial fact to remember for

it is established statutory law that § 53.1-191 credits are to be applied

as are their § 53.1-201 counterpart. Appendix, at Sa. And, of course,

it has become the settled law of the case that GCA credits are

“subtract(ed)” from the MPRD. Appendix 6a. It is the so-called “pro-

jection factor” noted by the court below, see Appendix, at 8a, which,

without identification of the correct and most recent MPRD, causes such

confusion in the case.

By way of illustration there is yet another point on which the in-

termediate court erred further serving to confirm a continued misunder-

standing of Virginia’s statutory scheme and a general disregard of stipu-

lated facts. In its opinion, at 11a, the court stated that § 53.1-159 au-

thorizes that the “the Board of Corrections may delay up to six months

the release of any prisoner if it has “reasonable cause’ to believe that,

if released, he will pose a danger to another individual. See supra note

In point of fact it is the Virginia Parole Board which has the au-

thority to delay the release of an inmate under such circumstances. Indeed

§ 53.1-134, et seq., Code of Virginia (1990), statutorily creates the Parole

Board and vests in that body such responsibilities as granting inmates

their discharge on discretionary parole (§53.1-136(2)), revoking inmates’

discretionary or mandatory parole (§53.1-165), and as noted, deferring

an individual’s mandatory parole release for a period of up to six months

(§53.1-159). These functions fall strictly within the purview of the

Virginia Parole Board which, in every true sense of the word, acts au-

tonomously both of the DOC and of the Board of Corrections. See also

Appendix, at 19a, Nos. 13-19.

IV.

The Court Below Erred In Concluding That The

DOC’s Application Of The Credits In Issue Is

Consistent With The Legislative Intent.

Although a great many similarities exist, § 53.1-191 credits have

a Character uniquely different from those granted state prisoners and

assigned under § 53.1-201. The parties long ago stipulated that, unlike

§ 53.1-201 credits, awarded § 53.1-191 credits are not subject to for-

feiture in the event the inmate escapes custody or otherwise violates a

eee

prison rule or regulation. Appendix, at 21a, #42-43. By contrast, § 53.1-

191 credits may be recommended by prison administrators, but in fact

“[njeither the VDOC nor its employees has control over credits awarded

to inmates by the Board of Corrections under Section 53.1-191, Code

of Virginia, except with regard to making ... the mathematical applica-

tion of such a credit against an inmate’s term of confinement.” Appen-

dix, at 22a, #46, Section 53.1-191 credits require the approval of no

less an authority that the state’s Chief Executive.®

Some other established principles relative both to statutory construc-

tion and deference are timely noted here. In Virginia, penal statutes are

to be strictly construed against the Commonwealth and in favor of a

citizen’s liberty. They cannot be extended by implication. Harward v.

Commonwealth, 229 Va. 363 (1985). In determining the meaning of a

Statute the courts look not only to the particular statutory language, but

also to the design of a statute as whole and its object and policy.

Philbrook v. Glodgett, 421 U.S. 707 (1975); Gozlon-Peretz v. United

States, 498 U.S. __, 112 L Ed 2d 919 (1991). It is clear that in pro-

mulgating § 53.1-191, the Virginia General Assembly intended to com-

pensate the extraordinary services performed by prisoners with credits

of time that, once assigned, could not be forfeited in response to nega-

tive conduct. Those credits of time, like those earned under § 53.1-201,

are designed to reduce the period of time that an individual is confined.

Appendix, at 6a. It is equally patent that the Virginia General Assembly

vested the full discretion and control of § 53.1-191 in the Board of

Corrections and granted neither to the Department of Corrections. In other

words, contrary to the conclusion of the Fourth Circuit, the DOC is not

the implementing agency. Appendix, at 10a.

With respect to application, § 53.1-199 delineates the methodology

of applying credits to prisoner’s terms of confinement. The statute

instructs that any credit is to be deducted from the person’s “maximum

term of confinement” and one-half (.5) of the credit is to be used to reduce

that period before the person is eligible for discretionary parole release

consideration. In terms of practice the respondents stipulated below that,

as credits are applied, prior credits are retained. Appendix, at 21a, #31.

* In this sense § 53.1-191 credits are more akin to Executive Clemency or a par-

don. See, e.g., Pope v. Chew, 521 F.2d 400 (4th Cir. 1975). It is settled law

that such acts are protected.

See also, Appendix, at 7a n. 8. In its opinion the court below noted that

“as a prisoner earns GCA credits, the DOC recalculates his MPRD by

‘subtracting’ from the prisoner’s initial MPRD the sum” of credits

granted. Appendix, at 6a. (emphasis added).

It is undisputed that the respondents construe the words “maximum

term of confinement” contained in § 53.1-199 to mean “the prisoner’s

original sentence”. Appendix, at 7a. And, of course, it is inarguable that

§ 53.1-191 uses the words “term of confinement”, specifically omitting

the word “maximum”. No great leap is required to realize that the Virginia

General Assembly expected inmates to earn GCA credits before being

awarded a § 53.1-191 credit, if ever they are. It would have been decisive

and conclusive de minimus to repeat the word “maximum” in the lan-

guage of § 53.1-191 if the Virginia General Assembly intended that com-

putations would be made as outlined by the court below. Appendix, at

7a-9a. Because the state iegislature would have no way of predicting

where inmates wouid siand in terms of GCA credits at the time of any

§ 53.1-191 awards, the use of the word “maximum” in § 53.1-191 would

support and necessitate the computational methodology espoused by the

respondents and the court below. Instead, the Virginia General Assem-

bly omitted the word “maximum” thereby devising a methodology

whereby the initial GCA classification resulted in the computation of an

original MPRD against, or subtracted from, the prisoner’s original

sentence, while the “end date” used in every subsequent transaction would

be the previously-identified MPRD.

It is a settled rule of statutory construction that where a word is used

in one portion of the statute but not another, the legislature is presumed

to have acted intentionally in the disparate inclusion or exclusion. Russello

v. United States, 464 U.S. 16 (1983); and, Rodriguez v. United States,

480 U.S. 522 (1987). Although these statutes are not one in the same,

clearly §§ 53.1-159, 191, 199, and 201 must all be read together to fully

understand Virginia’s unique “good-time” scheme.

As this Court has clearly stated, when expounding a statute the Court

must not be guided by a single sentence or member of a sentence, but

must look to the provisions of the whole law, and to its object and policy.

Pennhurst State School & Hospital v. Halderman, 451 U.S. 1 (1981);

Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41 (1987); and, Dole v. United

Steelworkers of America, 494 U.S. 26, 108 L Ed 2d 23 (1990). It is

elementary that, had the Virginia General Assembly wanted credits earned

or awarded reduced by “projection factors”, it would have said so. In

‘I

the absence of language to the contrary, common sense and constitu-

tional edict dictate that any credits awarded to a prisoner must be

subtracted from the MPRD ascribed on the date of the transaction.

Compare e.g., Appendix, at 27a. It is likewise settled law that “judicial

deference to an agency’s interpretation of a statute “only sets the frame-

work for judicial analysis; it does not displace it’” Securities Industry

Assoc. v. Board of Governors, 468 U.S. 137, 143 (1984) (citations

omitted). The court below is required to “reject administrative construc-

tions ... that are inconsistent with the statutory mandate or that frustrate

... the policy” which the General Assembly “sought to implement.” /bid.

(citations omitted). The Fourth Circuit instead adopted such a construc-

tion.

This case offers another reason to discount the deference accorded

the respondents: as often noted hereinabove the parties stipulated, inter

alia, that as inmates progressed up the GCA ladder, credits previously

assigned are retained and new credits commence on the date the new

level of assignment becomes effective. Appendix, at 21a, #31. Now, how-

ever, the respondents select to ignore this stipulated fact and argue that

all time-credit transactions must be deducted from the “maximum term

of confinement” or, as the court below noted the respondents’ definition,

the “original sentence” imposed.

Where, as here, the agency shifts its position from that initially

adopted, “its interpretation is entitled to /ess weight.” Securities Indus-

try Assoc., supra, 468 U.S. at 144 (emphasis added).

SUMMARY

The Fourth Circuit’s “rational basis” rule expands upon a nation-

wide judicial policy of according deference to agency statutory interpre-

tations. This expansion insiructs the trial courts not to entertain cases

involving challenges to agency statutory interpretative decisions unless

the decisions are without a “rational basis” or the constitutionality of

the statute is itself challenged. It is patent that the revised policy is not

constrained to the Virginia Department of Corrections.

Rather, if this expanded circuit policy stands it will be applied to

decisions of all state and other agencies within the Fourth Circuit ju-

risdictions. There are over 22,877,643 citizens residing in the Fourth

Circuit states.’ The Fourth Circuit’s deference policy, significantly dif-

ferent from that applied in other circuits, see, supra, 13-14, will create

confusion and lead to additional litigation. This Court should grant cer-

tiorari to resolve the important questions presented herein.

7 Source: 1990 Census. Does not include servicemen and women overseas.

CONCLUSION

This case compels the attention of the highest Court in our country.

The decision of the court below, without basis in law or consistency with

other authority, creates a dangerous precedent which only the Supreme

Court of the United States can correct.

For the foregoing reasons and, predicated upon the authority cited,

the petitioners respectfully pray that the Court will enter an Order agreeing

to review this matter and scheduling full briefing.

Respectfully Submitted,

DEXTER D. COFFIN, III, et al.,

By Counsel

/s/ Dexter D. Coffin, I

Dexter D. Coffin, II

707 E. Jefferson Street

Charlottesville, VA 22902

Telephone: (804) 296-3944

Petitioner, pro se

/s/ Steven D. Rosenfield

Steven D. Rosenfield

Attomey at Law

917 E. Jefferson Street

Charlottesville, VA 22902

Telephone: (804) 296-4139

VSB No. 16539

Counsel for Petitioners

Doe and Joe

March 9, 1993

APPENDIX

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DEXTER DRAKE COFFIN, III; DOE; JOE,*

titio ll

EDWARD W. MURRAY; Director,

Virginia Department of Corrections;

E. C. MORRIS, Deputy Director,

Virginia Department of Corrections;

No. 92-6630

LOU ANN WHITE, Manager,

Classification and Records Unit,

Court and Legal Services, Virginia

Department of Corrections;

UNKNOWN ADMINISTRATIVE

PERSONNEL, Virginia Department of

Corrections,

Respondents-Appellants.

* After decision of these appeals but before final publication of the

Court’s opinion, two of the appellees moved the Court that they be

referred to in the opinion by the pseudonyms “Doe” and “Joe.” The Court

granted the motion by order filed January 19, 1993.

ieee erie

DEXTER DRAKE COFFIN, III; DOE; JOE,*

etitio lI

EDWARD W. MURRAY; Director,

Virginia Department of Corrections;

E. C. MORRIS, Deputy Director,

Virginia Department of Corrections;

No. 92-6631

LOU ANN WHITE, Manager,

Classification and Records Unit,

Court and Legal Services, Virginia

Department of Corrections;

UNKNOWN ADMINISTRATIVE

PERSONNEL, Virginia Department of

Corrections,

Respondents-Appellants.

Appeals from the United States District Court

for the Western District of Virginia, at Harrisonburg.

B. Waugh Crigler, Magistrate Judge.

(CA-91-44-H)

Argued: October 2, 1992

Decided: December 16, 1992

Amended by order filed January 22, 1993

Before WILKINSON, NIEMEYER, and LUTTIG, Circuit

Judges

No. 92-6630 reversed and No. 92-6631 dismissed by published

opinion. Judge Luttig wrote the opinion, in which Judge Wilkinson

and Judge Niemeyer joined.

COUNSEL

ARGUED: Reneen Evat Hewlett, Assistant Attomey General,

OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for

Appellants. Dexter Drake Coffin, III, Charlottesville, Virginia, Appel-

lee Pro Se; Steven David Rosenfield, Charlottesville, Virginia, for

Appellees. ON BRIEF: Mary Sue Terry, Attomey General of Virginia,

William R. Coleman, Assistant Attomey General, OFFICE OF THE

ATTORNEY GENERAL, Richmond, Virginia, for Appellants.

OPINION

LUTTIG, Circuit Judge:

The Director and other officials of the Virginia Department of Correc-

tions appeal from the judgment of the United States District Court for

the Western District of Virginia granting writs of habeas corpus and

declaratory and injunctive relief to appellees Dexter D. Coffin, III, Doe,

and Joe, inmates confined within the Virginia Department of Corrections

system. The district court held that appellees’ Fourteenth Amendment

rights were abridged by appellants’ misinterpretation of a Virginia prison

Statute governing the application of extraordinary credits. We conclude

that appellants properly interpreted and applied the Virginia statute and

that appellees thus were not deprived of any liberty interests protected

by the Fourteenth Amendment. We therefore reverse.

The relevant facts are undisputed. From 1987 through mid-1988

appellees Coffin, Doe, and Joe were confined at the Augusta Correc-

tional Center. During that time, they cooperated with Virginia and

Maryland law enforcement authorities. In return for their cooperation,

the Virginia Board of Corrections, with the consent of the Governor,

awarded each of the appellees a 36-month extraordinary credit pursuant

to section 53.1-191 of the Virginia Code. The credits were awarded on

July 16, 1990. App. at 217-19. At that time, Coffin was on parole, having

been released on August 4, 1989. See infra note 12. Doe and Joe,

however, were still in prison, where they remain today. The Department

of Corrections [the DOC] thereafter applied the extraordinary credits to

appellees’ terms of confinement in accordance with its standard proce-

dures for implementing section 53.1-191. See discussion infra Part I1.B;