Berry v. Va. Dep't of Corr.

• Jurisdiction: United States,Federal,Virginia
• Court: U.S. District Court — Eastern District of Virginia
• Docket Number: 1:22cv1302 (CMH/WEF)
• Decision Date: 28 March 2024
• Citation: Berry v. Va. Dep't of Corr., 1:22cv1302 (CMH/WEF) (E.D. Va. Mar 28, 2024)
• Parties: Michael Allen Berry, Petitioner, v. Virginia Department of Corrections, et al., Respondents.
• topic: Civil Rights,Constitutional Law

1

Michael Allen Berry, Petitioner, v. Virginia Department of Corrections, et al., Respondents.

No. 1:22cv1302 (CMH/WEF)

United States District Court, E.D. Virginia, Alexandria Division

March 28, 2024

MEMORANDUM OPINION

Petitioner Michael Allen Berry (“Petitioner” or “Berry”), a Virginia inmate proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254. The petition was “an unintelligible narrative,” and he was directed to amend. [Dkt. No. 14]. In his amended petition he alleges that the Virginia Department of Corrections (“VDOC”) violated his due process rights by “lumping his” four ten-year sentences together, “and applied the wrong good time statute,” which effected how he earned good time, [Dkt. No. 16 at 5]; the Virginia Parole Board (“VPB”) violated his due process rights and denied him the right to a fair hearing because “only one member. Mr. Chadwick Dodson (The Chairperson), to make the decision not to grant [him] parole release,” [Id. at 6-7]; and that the Supreme Court of Virginia Supreme denied him his right to due process because it dismissed his state habeas petition for lack of jurisdiction. [Id. at 8]. The Respondent filed a Rule 5 Answer and a Motion for Summary Judgment, with a supporting brief. The Petitioner exercised his right to respond as provided by Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) and Local Rule 7(K) and filed a brief on August 11, 2023. [Dkt. No. 30].

After reviewing the pleadings, the Court directed the Respondent to provide documents or an affidavit to complete the record of the VPB proceedings at issue. [Dkt. No. 31]. The respondent filed the requested information, which included an affidavit on December 13, 2023.

[Dkt. Nos. 34, 34-1]. On December 14,2023, the Court pursuant to Roseboro, entered an order advising Berry that he had a right to respond, [Dkt. No. 35], and Berry was given an extension of time to respond and he filed his response on January 17, 2024, with copies of the March 6 2023 and March 22, 2022 letters from the VPB. [Dkt. Nos 42,42-1]. On February 28, 2024, the Court gave notice it was converting the motion to dismiss to a motion for summary judgment, see Fed. R. Civ. Proc, Rule 12(d), and gave petitioner additional time to respond or seek limited discovery. [Dkt. No. 43]. On March 14, 2024 Berry responded. [Dkt. No. 45].

Accordingly, this matter is now ripe for disposition. For the reasons that follow, the Court has determined that respondent's Motion to Dismiss will be granted, and the petition dismissed with prejudice.

I. Background

Petitioner is currently detained by the VDOC at the Haynesville Correctional Center. Berry was convicted of four felonies by the Circuit Court for Albemarle County, Virginia and judgment was entered imposing ten-year sentences for each of the four felonies on January 28, 1999. The felonies included two counts of sodomy in violation of Virginia Code § 18.2-67.^[1] (offense dates August 25, 1994 and October 31,1994); and two counts of rape in violation of Virginia Code § 18.2-61 (offense dates October 31, 1994). The four sentences were run consecutive to each other, for an aggregate forty-year term. [Dkt. Nos. 16 at 1,5, 16; 34-1 at 2].

Berry' discretionary parole eligibility date was March 25, 2013, and his mandatory parole release date is October 14, 2025. Berry was denied parole on March 17, 2022, and Berry was notified by a letter dated March 18, 2022. [Dkt. No. 34-1 at 2, 10-11].' Berry's 2022 petition for parole was heard by three VPB members.^[2] Each of the three members that heard his parole were appointed to the VPB in January 2022, and their respective appointments ended on September 23, 2023; March 10, 2022; and March 10, 2022. [Id. at 3].^[3]

On March 6, 2023, three members of the VPB heard and denied Berry's 2023 petition for parole. [Id.].^[4] One member was appointed on: April 1, 2022, and is still serving; the second member was appointed on April 20,2022, and his appointment ended on February 8, 2023; and the third member was appointed on January 17,2022 and his appointment ended on September 8, 2023. [Id. at 3-4].

On June 15, 2022, Berry filed a petition for writ of habeas corpus in the Supreme Court of Virginia, which alleged that the circuit court had imposed four consecutive ten-year sentences and that the VDOC violated his rights by “lumping” his four ten-year sentences into an aggregate 40-year term. Berry also alleged that the VPB improperly denied his discretionary parole because only one member made that decision^[5]The Supreme Court of Virginia dismissed his state habeas petition on August 11, 2022. and denied his petition for rehearing on October 6, 2022. Berry v. Virginia Department of Corrections, et al., Record No. 220355.

On November 14, 2022, Berry filed his federal § 2254 petition, and subsequently filed his amended § 2254 petition on May 15, 2023. The amended petition raises three claims:

1) By "lumping [his] sentences together” the VDOC violated Virginia Code § 53.1- 199; as well as his Fifth and Fourteenth Amendment rights. By aggregating the sentences, the VDOC also “chang[ed] the fashion” in which Berry earns good time credits on each of his four sentences. The change in the manner in which Berry earned good time has “resulted in a loss of good time credits” and has resulted in him serving “a longer sentence” in violation of state law. [Dkt. 16 at 16-17].

2) The VPB violated “Virginia Code §§ 2.2-200(C)(1) and 2.2-105, infringing upon petitioner's state created liberty interest when [the VPB] made a decision "not to grant' parole release with only one member sitting.” [Id. at 20],

3) “The Virginia Supreme Court has jurisdiction to hear petitioner's habeas petition.” [Id. at 23].' '

IL Exhaustion

Respondent argues that Berry's claims related to his alleged misclassification regarding good time credits and that the Supreme Court of Virginia incorrectly dismissed his state petition are not exhausted because he did not raise them in state habeas. [Dkt. No. 26 at 3]. Exhaustion is satisfied as long as the claim has been fairly and properly presented to the highest court, either on direct appeal or in state collateral proceedings. Baker v. Corcoran, 220 F.3d 276, 288 (4th Cir. 2000).

Claim 1 has two parts. The first part alleges the VDOC violated Berry's rights by aggregating his four ten-year sentences into a forty-year aggregate term of confinement. The respondent admits this portion of Claim 1 is exhausted. The second portion of Claim 1 alleges that VDOC's miscalculation of his sentences has resulted in his loss of good time credits because he is classified as earning good time under the Earned Sentence Credit (“ESC”) system and he should have been classified as earning good time under the Good Conduct Allowance (“GSA”), which respondent argues is not exhausted because it was not raised in the state habeas petition. Respondent admits Claim 2, regarding the denial of his parole in 2022, is exhausted, but denies that Claim 3, asserting the Supreme Court of Virginia violated his rights by dismissing his state habeas for lack of jurisdiction, is exhausted.

Ruling on the question of exhaustion, however, is not necessary for reaching a decision on respondent's motion because the Court may deny a § 2254 petition on the merits, “notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(2). Berry's petition and other filings misstate the applicable law as well as the cases and statutes he relies upon.

III. Standard of Review

Respondent's motion to dismiss is supplemented by documents and an affidavit. The affidavit is not disputed by any competent evidence. Consequently, the assertions of fact therein will be considered by the Court.

A. Claim 1

In the first part of Claim 1, Berry alleges that the VDOC violated his rights under Code § 53.1-199 by aggregating his sentences into a forty-year aggregate term of confinement. Berry argues that he should be considered for parole on each ten-year sentence even though the four ten-year sentences are served consecutively. His argument is based upon Virginia case law that has been overruled and was decided before Virginia's current statutory scheme. He also ignores the plain language of the very statutes he asserts support his position.

It is well established that “there is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence.” Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7 (1979). Inmates in Virginia, at most, have an expectation that they may, at some time, be released on parole should the VPB determine that such release is in the interests of society and the prisoner. See Gaston v. Taylor, 946 F.2d 340, 344 (4th Cir. 1991). However, the Fourth Circuit has observed that although the Virginia statutes provide “a prisoner the right for parole consideration at a specified time, at whatever time a prisoner is considered for parole, his actual release is a discretionary decision.” Id.

In the context of habeas, and contrary to Berry's argument, the Fourth Circuit has held that for prisoners serving consecutive sentences, “custody ... is defined not by any one particular sentence but by the aggregate of the sentences.” Bernard v. Garraghty, 934 F.2d 52, 54 4th Cir. 1991) (emphasis added, citing Peyton v Rowe, 391 U.S. 54, 64 (1968) (“‘Custody,' comprehends such a petitioner's status for the entire duration of his imprisonment-the aggregate of the sentences”)); see also Garlotte v. Fordice, 515 U.S. 39,46 (1995) (petitioner may challenge prior, expired sentence to which current sentence was consecutive, because “we view consecutive sentences in the...