Wade v. Robinson

• Decision Date: 22 April 2003
• Docket Number: No. 01-7768.,01-7768.
• Citation: 327 F.3d 328
• Parties: Carroll E. WADE, Petitioner-Appellant, v. Dave ROBINSON, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

327 F.3d 328

Carroll E. WADE, Petitioner-Appellant, v. Dave ROBINSON, Warden, Respondent-Appellee.

No. 01-7768.

United States Court of Appeals, Fourth Circuit.

Argued: January 21, 2003.

Decided: April 22, 2003.

ARGUED:

Christie Ann Leary, Greenspun & Mann, P.C., Fairfax, Virginia, for Appellant. William W. Muse, Assistant Attorney General, Division of Public Safety & Enforcement, Office Of The Attorney General, Richmond, Virginia, for Appellee. ON BRIEF:

ON BRIEF:

Jerry W. Kilgore, Attorney General, Division of Public Safety & Enforcement, Office Of The Attorney General, Richmond, Virginia, for Appellee.

Before LUTTIG, WILLIAMS, and GREGORY, Circuit Judges.

Affirmed by published opinion. Judge LUTTIG wrote the opinion, in which Judge WILLIAMS joined. Judge GREGORY wrote a concurring opinion.

OPINION

LUTTIG, Circuit Judge:

Petitioner Wade appeals the district court's dismissal of his 28 U.S.C. § 2254 habeas corpus petition as untimely pursuant to 28 U.S.C. § 2244(d)(1)(A). Wade contends first that section 2244(d)(1) does not apply to his petition, which challenges the state's rescindment of his good conduct credits upon his parole revocation, because his is not a challenge to a state court judgment, and because, he argues, he is not in custody pursuant to a state court judgment. Alternatively, Wade contends that the district court misapplied section 2244(d)(1).

Although the district court did misapply section 2244(d)(1), Wade's first contention is without merit, and his petition is still untimely under a correct calculation of the limitation period. Accordingly, we affirm.

I.

Wade was convicted of burglary and cocaine possession on June 17, 1994, and he was thereafter sentenced to eighty-four months of imprisonment, forty-five of which were suspended. In January 1996, Wade was released on supervised parole. He was found guilty of parole violations by the Virginia Parole Board on April 3, 1997 and his parole was revoked. Wade filed a state habeas petition on February 12, 1998, challenging, as in violation of the Ex Post Facto Clause, section 53.1-159 of the Virginia Code, which denies re-incarcerated parole violators the benefit of previously accrued good conduct credits.¹ The Virginia court denied his petition on June 30, 2000.

On June 29, 2001, Wade filed a habeas petition in federal district court under 28 U.S.C. § 2254 asserting the same constitutional claim as was denied by the state court. The district court dismissed Wade's petition, concluding that it was untimely filed under the limitation period that governs habeas petitions challenging custody pursuant to a state court judgment. See 28 U.S.C. § 2244(d)(1). In particular, the district court rested its judgment on section 2244(d)(1)(A). It reasoned that under subparagraph (A), subpart (1)'s one-year limitation began to run on May 3, 1997, the last day Wade could have directly appealed his parole revocation. Calculating that the limitation period was tolled from February 12, 1988 (the date Wade filed his state habeas petition), to June 30, 2000 (the date that petition was denied), the court concluded that the filing period expired in September 2000, ten months before Wade filed his federal petition. Wade timely noted an appeal.

II.

As a preliminary jurisdictional matter, appeal of a district court's dismissal of a section 2254 habeas petition may not be brought before this court unless a Certificate of Appealability issues. See 28 U.S.C. § 2253(c). In this case, Judge Gregory, acting as a single circuit judge, granted a Certificate of Appealability, thus providing us with jurisdiction to address Wade's petition.

III.

A.

On appeal, Wade contends first that section 2244(d)(1) does not apply to him at all. He contends that that section, by its plain language, only governs habeas petitions (1) brought by persons who are in custody pursuant to a state court judgment, and (2) which directly challenge a state court judgment. And he argues that he is not in custody pursuant to a state court judgment and that his petition does not challenge a state court judgment. See Petitioner's Br. at 10 (arguing that Wade is "in custody pursuant to a decision by the Virginia Parole Board," not pursuant to a judgment of a state court); Petitioner's Reply Br. at 3 ("A plain reading of § 2244(d)(1) makes that limitation period applicable to challenges of state court judgments alone.").

Section 2244(d)(1) of Title 28 of the United States Code, imposes the following limitation on federal habeas claims:

(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court....

28 U.S.C. § 2244(d)(1). Thus, any "person in custody pursuant to the judgment of a State court," and who brings an application for a writ of habeas corpus, is subject to the "1-year period of limitation."

Wade's first argument, that he is in custody pursuant to an order of the Virginia Parole Board, not a judgment of a state court, misses the point. Most immediately Wade does find himself, in common parlance, in custody by virtue of the parole board's decision to revoke his parole. But he still is, and remains, in custody pursuant to his 1994 conviction and sentence. That is, he is in custody pursuant to a state court judgment within the meaning of section 2244(d)(1), even if he also is in custody pursuant to the judgment of a state executive agency.

Wade's second contention, that section 2244(d)(1) only applies to habeas petitions that actually challenge state court judgments, also fails. The section's plain language reaches any and every habeas petition filed by persons who are in custody pursuant to state court judgments. The section does not distinguish based on the contents of a petitioner's claim, but encompasses all "application[s] for writ of habeas corpus." Here, Wade, a person in custody pursuant to a state court judgment, applied for a writ of habeas corpus, and the section, together with its 1-year limitation, governs.

Section 2244(d)(1) is not alone in not distinguishing among habeas claims that challenge state court judgments and those that challenge another aspect of custody. As section 2254 makes clear, the defining feature of a state prisoner's habeas claim is that it presents a challenge to his custody.

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.

28 U.S.C. § 2254(a) (emphasis added). Section 2244(d)(1), governing "application[s] for a writ of habeas corpus," applies to claims challenging any aspect of custody, so long as the petitioner is in custody pursuant to a state court judgment.²

Wade next argues that even if section 2244(d)(1)'s text does not compel his interpretation, subparagraph (A) of the section does.

(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of —

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1).

Wade's reading, that subparagraph (A) implicitly limits the reach of subpart (1), is not plausible. Subpart (1) is a self-contained provision which, in clear, unequivocal language, sets forth a 1-year limitation period for all habeas challenges filed by persons held in custody pursuant to state court judgment. Neither subparagraph (A) nor any of the paragraph's other subparagraphs can plausibly be understood to limit the reach of this subpart to only petitions that challenge the state court judgment pursuant to which the petitioner is in custody. These subparagraphs merely identify the date from which the 1-year limitation period applicable to all who are in custody pursuant to state court judgment will begin to run. They do not serve to further limit the class of persons as to whom the 1-year limitation applies.³

Because section 2244(d)(1) contains no restriction limiting its reach to habeas claims challenging state court judgments, and because its subparagraphs neither necessitate nor even imply such a restriction, we conclude that section 2244(d)(1) "appl[ies] to [Wade's] application for a writ of habeas corpus [since he is] a person in custody pursuant to the judgment of a State court." See 28 U.S.C. § 2244(d)(1).

B.

In applying section 2244(d)(1) to Wade's petition, the district court concluded that subparagraph (A) governed, and it identified the start of the limitation period as the date the Virginia Parole Board decision became final. Wade argues the court erred because subparagraph (A) refers to the date on which a state court judgment becomes final. Because the Virginia Parole Board is an executive agency, he reasons the date of its judgment cannot trigger the limitation period under subparagraph (A). We agree with Wade. Subparagraph (A), referencing "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review," plainly references "the judgment"...