Richards v. Clarke, No. 3:2014cv00715 - Document 11 (E.D. Va. 2015)
Court Description: MEMORANDUM OPINION. See Opinion for complete details. Signed by District Judge Robert E. Payne on 07/17/2015. (ccol, )
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Richards v. Clarke Doc. 11 E p IN THE UNITED r STATES DISTRICT COURT JUL 1 7 2015 FOR THE EASTERN DISTRICT OF VIRGINIA r\\ y ,J Richmond Division CLERK IJ S OiSlniCT COURT 'niCurvlOND. VA MARK E. RICHARDS, Petitioner, V. Civil Action No. HAROLD W. CLARKE, 3:14CV715 Director, Respondent. MEMORANDUM OPINION Petitioner, pro se, Mark E. § The matter is 2254 (hereinafter, before the Court pursuant to 28 U.S.C. Governing Section this Court habeas petition.^ the a Virginia inmate proceeding filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. Courts, Richards, action. § 2254 636(b). cases conducts a "§ 2254 for a Petition," ECF No. Report 1) . and Recommendation Pursuant to Rule 4 of the Rules in the United preliminary States review of District Richards's The Magistrate Judge recommended dismissing Richards filed objections. For the reasons that ^ According to Rule 4 of the Rules Governing Section 2254 cases; The clerk must promptly forward the petition to a judge under the court's assignment procedure, and the judge must promptly examine it. If i t plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner. Rules Governing § 2254 Cases in U.S. District Courts, Rule 4. Dockets.Justia.com follow will Richards's Objections will be overruled and the action be dismissed. I. The Magistrate BACKGROUND Judge made the following findings recommendations: In his § 2254 Petition, Richards demands federal habeas relief because "the Virginia Parole Board violated his due process rights when the Board found him not suitable for release on parole." (§ 2254 Pet. 2.) For the reasons set forth below, that the A. action be Procedural i t is RECOMMENDED DISMISSED. History and Svunmary of Richards's Claims Richards has an Richards v. Clarke, *1 n.3, *2-4 (E.D. extensive No. Va. criminal record. See 3:12CV639, 2014 WL 693505, at Feb. 21, 2014). In 2013 and 2014, the Virginia Parole Board denied Richards release on discretionary parole because of, inter alia: his "[e]xtensive criminal record"; his "prior failure[s] and/or convictions while under community supervision indicate that [he is] unlikely to comply with conditions indicates a of serious release"; disregard for Richards's "record the property rights of others"; and, Richards's "record of institutional infractions indicates a disregard for rules and that [he is] not ready to conform to society." (Mem. Supp. § 2254 Pet. Attach. D, at 1; see id. Attach. E.) In his § 2254 Petition, Richards "claims that the Virginia Parole Board violated his due process rights when the Board found him not suitable for parole." (§ 2254 Pet. 2.) B. Analysis The Due Process Clause applies when government action deprives an individual of a legitimate liberty or property interest. See Bd. of Regents of State Colls, v. Roth, 408 U.S. 564, 569-70 (1972). Thus, the first step in analyzing a procedural due process and claim is to identify whether the alleged conduct affects a protected liberty or property interest. Beverati v. Smith, 120 F.3d 500, 502 (4th Cir. 1997) (citations omitted). Where government action impacts a protected liberty interest, the second step is to determine "what process is due" under the circumstances. Morrissey v. Brewer, 408 U.S. 471, 481 (1972) (observing that "due process is flexible . . . . not all situations procedural safeguards call procedure"). A liberty interest for the calling same for kind of may arise from the Constitution itself, or from state laws and policies. Wilkinson v. Austin, 545 U.S. 209, 220-21 (2005). "There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence." Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979). "With no constitutional right to parole per se, federal courts recognize due process rights in an inmate only where the state has created a 'legitimate claim of entitlement' to some aspect of parole." Vann V. Angelone, 73 F.3d 519, 522 (4th Cir. 1996) (quoting Gaston v. Taylor, 946 F.2d 340, 344 (4th Cir. 1991)). The United States Court of Appeals for the Fourth Circuit consistently has found the pertinent Virginia statutes fail to create a protected liberty interest in release on parole. See Burnette v. Fahey, 687 F.3d 171, 181 (4th Cir. 2012) (citing Gaston v. Taylor, 946 F.2d 340, 344 (4th Cir. 1991); Vann v. Angelone, 73 F.3d 519, 522 (4th Cir. 1996)). Virginia, however, has created a limited liberty interest in consideration for parole. Burnette v. Fahey, 3:10CV70, 2010 WL 4279403, at *8 (E.D. Va. Oct. 25, 2010); Burnette, 687 F.3d at 181. "*The question thus becomes what procedures are required under the Due Process Clause in [considering] an inmate for discretionary release on parole.'" Burnette, 2010 WL 4279403, at *8 (quoting Neal v. Fahey, No. 3:07cv374, 2008 WL 728892, at *2 (E.D. Va. Mar. 18, 2008)). The Fourth Circuit has stated that the Constitution requires only a very limited amount of process in considering an inmate for parole. Specifically, "[a]t most, . . . parole authorities must furnish to the prisoner a statement of its reasons for denial of parole." Burnette, 687 F.3d at 181 (alteration and omission in original) (citation omitted) (internal quotation marks omitted). "So long as the statement provides a valid ground for denying parole, the federal courts cannot, under the guise of due process, demand more from the state." Burnette, 2010 WL 4279403, at *8 (citation omitted). Moreover, "where the denial of parole . . . rests on one constitutionally valid ground, the Board's consideration of an allegedly invalid ground would not violate a constitutional right." Bloodgood v. Garraqhty, 783 F.2d 470, 475 Zant V. Stephens, Here, with a (4th Cir. 862 1986) (citing (1983)). the Virginia Parole Board provided Richards statement parole. prior 462 U.S. of Richards's failures its reasons extensive on for denying record criminal community him and supervision provide legitimates bases for the Virginia Parole Board to deny Richards release on parole. Bloodgood, 783 F.2d at 475. In comparable circumstances, the Fourth Circuit has "concluded constitutionally that sufficient the parole reasons when board it gave informed the prisoner that he was denied parole release because of 'the seriousness of [his] crime' and his 'pattern of criminal conduct.'" Burnette, 2010 WL 4279403, at *8 (alteration in original) (quoting Bloodgood, 783 F. 2d at 472, 474). Because Richards has received all of the process that the Constitution requires, he fails to state a basis for federal habeas corpus relief. Accordingly, it is RECOMMENDED that Richards's § (Report 2254 Petition BE DISMISSED. and Recommendation entered April 27, 2015 (alterations in original).) II. STANDAKD OF REVIEW FOR REPORT AND RECOMMENDATION "The magistrate makes only a recommendation to this court. The recommendation responsibility court." 1993) to Estrada has make v. (citing Mathews a no final Witkowski, v. Weber, presumptive weight, determination 816 423 F. remains Supp. U.S. and 261, 408, the with this 410 270-71 (D.S.C. (1976)). This Court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which filing objection of district is objections judge to made." to focus a 28 U.S.C. § magistrate's attention on 636(b)(1). report those enables the issues-factual and legal-that are at the heart of the parties' dispute." Arn, 474 U.S. 140, 147 recommendation, (1985). "The Thomas v. When reviewing the magistrate's this Court "may also receive further evidence." 28 U.S.C. § 636(b)(1). III. RICHARDS'S OBJECTIONS Richards asserts: The whether basis he for received Petitioner's notice of objection the reason is not for the denial of his discretionary parole but is that he did not receive fair consideration for parole suitability under Due Process of Law. Virginia parole statutes contemplate that Petitioner be conditionally released if some evidence indicates he is not an unsuitable risk to the public safety. See Franklin v. Shields, 569 F.2d 789-90 (4th Cir. 1977). (Objs. 2.) Richards's ignores the objection controlling is utterly authority frivolous recited by and the simply Magistrate Judge that reflects that he received all the process due to him when the Virginia Parole Board provided him with a its reasons for denying him parole. F. 3d 171, 181 (4th Cir. 2012) statement of See Burnette v. Fahey, 687 (quoting Franklin v. Shields, 569 F.2d 784, 801 (4th Cir. will be overruled. 1978) The accepted and adopted. (en banc)). Report and Richards's objection Recommendation The action will be dismissed. will be The Court denies a certificate of appealability. An appropriate Final Order will accompany this Memorandum Opinion. /s/ Date: O / in Richmondf^ ViTginia ^ Kooert tj. fayne Senior United States District Judge
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