Case 3:10-cv-00070-REP Document 20 Filed 10/25/10 Page 1 of 28

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

SHARON BURNETTE, et al.,
Plaintiffs,
v.
HELEN F. FAHEY, et al.,
Defendants.

Civil Action No. 3:10CV70

MEMORANDUM OPINION This matter is before the Court on the Defendants' MOTION TO DISMISS (Docket No.3). For the reasons set forth below, the motion will be granted.

I • BACKGROUND

This action was filed by eleven inmates who are prisoners

with the Virginia Department of Corrections ("DOC"). The Complaint

alleges that Defendants, who are members of the Virginia Parole

Board ("the Board"), violated the Plaintiffs' constitutional rights

with respect to discretionary parole. The two claims are

summarized below.

In Count I, the Plaintiffs contend that:

the Board has adopted practices that violate

Virginia law and deprive Plaintiffs -- and the

approximately 6,377 parole-eligible men and

women imprisoned for violent offenses

committed before January I, 1995 -- of fair or

meaningful consideration of parole.

The

Board's actions constitute a de facto

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abolition of the prov~s~ons of Virginia law governing parole, thus depriving Plaintiffs of liberty without due process of law." (Compl. ~ 27.) In Count II, the Plaintiffs contend that: [The] Board's actions have increased the punishment for Plaintiffs' crimes beyond the expectations and assumptions that the courts, prosecutors and defense counsel had at the time of sentencing and constitute an ex post facto enhancement of Plaintiffs' punishment in violation of the United States Constitution. (Comp1. ~ 27.) Plaintiffs also seek to have the action certified as a class action on behalf of parole eligible inmates who have been convicted of violent offenses. Defendants have moved to dismiss the action under Fed. R. Civ. P. 12(b) (6). Following briefing and argument, the motion is ripe for disposition.
II. SUMMARY OF ALLEGATIONS The allegations of the Complaint are to be taken as true and any reasonable inference is to be to the Plaintiffs. The allegations are summarized with that principle in mind. In 1994, the Virginia General Assembly abolished parole for all offenses committed after January 1, 1995. (Comp1. ~ 33.) Plaintiffs committed the offenses of which they were convicted before January 1, 1995. Thus, they are eligible to be considered for parole. Nevertheless, the Board repeatedly has denied each Plaintiff parole based on the serious nature and circumstances of their crimes.
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A. The Individual Plaintiffs

It is alleged that:

Each of the Plaintiffs has an outstanding institutional record, marked by positive evaluations, one or more educational degrees, vocational certifications, positive work experience, and satisfactory completion of reentry and other programs made available by [the] DOC. Each of the Plaintiffs has a solid release plan, including a place to live and reasonable prospects for employment.
(Compl. ~ 60.) The pertinent allegations respecting each

plaintiff are set forth below.

1. Sharon Burnette

Plaintiff Sharon Burnette committed her offense in 1981 at the age of 21. She pled guilty to murder and use of a firearm in connection with the killing of a gas station attendant during a robbery. She was sentenced to life plus one year. Her only prior conviction was for a misdemeanor for shoplifting. . . .
Burnette is now 49 years old and has served more than 28 years, which is well in excess of the median for first degree murder served prior to the abolition of parole by inmates with no prior violent offenses . . . .

Notwithstanding

her

[excellent

institutional] record, Burnette has been

denied parole twelve times, with two of the

denials occurring after three year deferrals

of consideration for parole. On each occasion,

the sole reason given for the denial has been

the \\serious nature and circumstances of the

crime" or words to that effect.

(Compl. ~ 61.) 1

1 The recitation of the allegations cites only to the pertinent paragraph in the Complaint. There are no citations to
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2. Pamela K. Burroughs
Plaintiff Pamela K. Burroughs committed her offense in 1985 at age 28. She had no prior criminal conviction, other than for trespassing after returning to a trailer to collect her belongings following an eviction. She pled guilty to murder of a robbery victim, who was killed by her two co-defendants during the course of the robbery. At the time of her offense, she was addicted to and a heavy user of methamphetamines. She was sentenced to life for murder, 30 years for robbery (with sentence suspended), and five years (pursuant to a separate indictment) for distribution of PCP (to run concurrently). When sentencing her, the Frederick County Circuit Court judge told her that with a good prison record he expected that she would be granted parole after her first or second review.
Burroughs is now 53 years old and has served more than 23 years, which is well in excess of the median for first degree murder served prior to the abolition of parole by inmates who had not committed any prior violent offenses.
(Comp1. ~ 62.) 2
3. Frank Carter Jr.
Plaintiff Frank Carter, Jr. committed his offenses in 1976 at age 26. He shot and killed his former girlfriend and her boyfriend after a party at which all had been drinking heavily. He received a sentence of 80 years. His only prior criminal record consisted of a number of misdemeanors and a juvenile offense for which he spent a year in a juvenile facili ty at age 12. He had no prior felony convictions.
subparagraphs.
2 In 2006, the Board also denied Burroughs parole for the additional reason of "involvement with drugs indicates disregard for the welfare of others." (Compl. ~ 5.)
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Carter is now 58 years old and has served 32 years, which is well in excess of the median for first degree murder served prior to the abolition of parole by inmates who had not committed any prior violent offenses.
(Comp1. ~ 63.)
4. Edward Conquest
Plaintiff Edward Conquest committed his offenses in 1975 at age 19. He was convicted of first degree murder for the killing of the driver of a dry cleaners van in the course of a robbery. He was sentenced to two life terms, one for the killing and one for the robbery. He had no prior juvenile or adult criminal record, and had never previously been arrested.
Conquest is now 54 years old and has served more than 34 years, which is well in excess of the median for first degree murder served prior to the abolition of parole by inmates with no prior violent offenses.
(Comp1. ~ 64.)
5. Donald W. Hoffman
Plaintiff Donald W. Hoffman committed his offense in 1978 at age 20. He pled guilty to first degree murder following the commission of rape by a co-defendant and received a life sentence. He was not convicted of the rape and recent DNA testing has eliminated him as a participant in the rape. His co-defendant was convicted of the rape, received a lesser sentence and was released upon completion of his sentence. Hoffman's only prior criminal record consisted of a simple assault conviction while a juvenile and an assault charge at age 18 that was dismissed upon an accord and satisfaction.
During his 31 years of incarceration, Hoffman has been charged with only one disciplinary infraction. That occurred in 2002 when he was charged with consensual conduct with his wife during a visit.
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Hoffman is now 52 years old and has served more than 31 years.
(CompI. ~ 65.)
6. Monty King
Plaintiff Monty King committed his offenses in 1986 at age 19. He had no prior juvenile or adult record or arrest. He pled guilty and was sentenced to life for felony murder, and seven years for robbery, based on evidence that I while under the influence of alcohol and PCP, he beat up an elderly woman while stealing her car in a parking garage. He used no weapons, but she later died from the beating. One week later, plaintiff King unsuccessfully attempted a similar car robbery (also while under the influence of drugs). He pled guilty to that offense, and received an additional sentence of five years for attempted robbery.
King is now 43 years old and has served more than 23 years, which is well in excess of the median for first degree murder served prior to the abolition of parole by inmates with no record of prior violent offenses.
(Compl. ~ 66.)
7 • Larry Macon
Plaintiff Larry Macon committed his two offenses in 1976 at age 19. He was convicted of robbery for taking a pocketbook from a woman on the street while pretending to carry a gun, and for a subsequent murder of the owner of stereo equipment who had returned to his home during the course of Macon's effort to steal the equipment. He was sentenced to life for the murder and nine years for the earlier robbery. Aside from three minor offenses as a juvenile and a gambling offense as an adult, none of which involved violence, Macon had no prior adult or juvenile record.
Macon is now 53 years old and has served more than 33 years, which is well in excess of the median for first degree murder served
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prior to the abolition of parole by inmates with no record of prior violent offenses.
{Compl. ~ 67.}
8. Marvin McClain
Plaintiff Marvin McClain pled guilty to murder and robbery in 1973 at age 29. The victim was a storekeeper who was shot and killed by a co-defendant during the course of the robbery of a convenience store. His only prior record consists of two juvenile offenses {breaking and entering and receiving stolen goods} .
McClain is now 67 years old and has served more than 36 years, which is well in excess of the median for first degree murder served prior to the abolition of parole by inmates who had not committed any prior violent offenses.
{Comp1. ~ 68.}
9. Benjamin Perdue, Jr.
Plaintiff Benjamin Perdue, Jr. committed his offenses in 1983 at age 42. He pled guilty to the malicious wounding of his former wife and the murder of her parents {and associated firearms violations} committed during the course of a contested divorce proceeding and while Perdue was intoxicated. He was sentenced to two life terms plus 21 years to run concurrently. He had no prior criminal convictions.
Perdue is now 69 years old and has served more than 25 years, which is well in excess of the median for first degree murder served prior to the abolition of parole by inmates with no record of prior violent offenses.
(Comp1. ~ 69.)
10. Henry Stump
Plaintiff Henry Stump committed his
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offense in 1980 at age 19. He pled guilty to murder for the killing of a bootlegger from whom he and a co-defendant were purchasing liquor. He was sentenced to a term of 93 years. (His co-defendant received a lesser sentence and was released on parole in 1990.) His only prior record consisted of a conviction for auto theft while a juvenile and charges of public intoxication.
stump is now 48 years old and has served more than 29 years, which is well in excess of the median for first degree murder served prior to the abolition of parole by inmates with no prior violent offenses.
(Compl. 1 70.)
11. Barbara Tabor
Plaintiff Barbara Tabor was convicted of felony murder in 1981 in connection with a robbery planned for a time the victim was not expected to be at home. Tabor was not present during the robbery, in which her co-defendant shot and killed the homeowner. She was sentenced to a term of life plus twenty one years. Her only prior criminal record was a conviction for transportation of stolen property for which she was sentenced to three years of probation.
Tabor is now 67 years old and has served more than 28 years, which is well in excess of the median for first degree murder served prior to the abolition of parole by inmates with no prior violent offenses.
(Compl. 1 71.)
B. Statistics with Respect to Parole Release
Much of the Complaint is addressed to statistical information
about parole in Virginia. The statistical information is set forth
below as alleged.
"The length of sentences imposed prior to the abolition of
parole was based upon the universal expectation and assumption that
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Virginia law afforded a fair and meaningful opportunity for parole

and that a prisoner who demonstrated an appropriate level of

rehabilitation and suitability for release would not serve the full

term or anything approaching the full term of his sentence."

(Compl. ~ 31.)

"From 1990 to early 1993, the parole grant rate [for all

offenders] averaged over 41%." (Compl. ~ 3 0 . ) "By fiscal year

1996, the parole grant rate in Virginia had dropped to 18% for all

offenders, i.e., including non-violent offenders. By fiscal year

2000, this figure had dropped to 8%, and by fiscal year 2008 it had

dropped to less than 5%." (Compl. ~ 47.)

"As of the end of September, 2008, 6,377 parole-eligible

inmates were incarcerated by DOC for violent offenses."

(Compl. ~ 21).3 "From fiscal year 2002 through fiscal year 2008,

the parole grant rate for inmates convicted of violent offenses

ranged from no higher than 3.7% to as low as 2.1%." (Compl. ~ 47.)

"In 2009, a representative of the Governor of Virginia (who by

statute appoints the members of the Parole Board and approves the

Board's rules governing the granting of parole and eligibility

requirements

. advised members of the General Assembly that

'the current low parole grant rate is a consequence of the high

proportion of violent offenders' under review by the Board.'" (Compl. ~ 50.) "In fact, as of September 2008, the percentage of

3 Based on the numbers provided in the Complaint, there are a total of 8,228 parole eligible inmates within the DOC. Of those inmates, 1,851 inmates are incarcerated for non-violent offenses.
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inmates eligible for parole who had committed violent offenses was 77.5%." (Compl. ~ SO.) "By comparison, in 1994, when the parole

grant rate was over 40%, the percentage of DOC inmates convicted of

violent offenses was 69.1%, thus belying any significant difference

in the proportion of violent offenders under review after the abolition of parole." (Compl. ~ SO.)

"In fiscal years 2006 and 2007, the Board gave only a single

reason for approximately 45% of all of its denials of parole -- the

\ serious nature and circumstances of crime' or words to that effect." (Compl. ~ 52.)

"Defendants' practices and policies following the abolition of

parole have substantially extended the median time served by

inmates eligible for parole. For example, during fiscal years 1988

through 1992, the median sentence for inmates convicted of first

degree murder without any prior violent offense was 12.4

years.

Plaintiffs and the members of the class convicted of

murder without any prior violent offense have all already served substantially more than 12.4 years." (Compl. ~ 57.)

C. Changes with Respect to Parole Practices and Procedures

Defendants have eliminated the Board's use of a risk assessment tool, which was used prior to 1995. (CompI. ~ 37.)

Additionally, section 53.1-136.1 of the virginia Code requires the Board to \\ [a] dopt, subj ect to approval by the Governor, general

rules governing the granting of parole and eligibility

requirements, which shall be published and posted for public

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review." Those rules were previously published in the Virginia

Administrative Code. 14 Va. Reg. No. 17 at 2457 (Apr. 22, 1998).

In 1998, the Board repealed those rules and replaced them with a

published "Policy Manual." The Policy Manual states that the

Board's parole decisions are "guided" by 14 factors, only one of

which relates to the nature of the offense for which the inmate was

incarcerated. (CompI. , 3 8 . )

with respect to Virginia's geriatric release statute,

Defendants require candidates for geriatric release (who are all

age 60 or older) to demonstrate "compelling reasons" for release.

(Comp1. ~ 56.)

Defendants have abandoned personal Board interviews of parole

candidates. Defendants have replaced Board interviews with parole

examiner reports.

The interviews by the parole examiners

frequently focus on the offense for which the inmate is

incarcerated and do not address other factors regarding the inmates

suitability for parole. Defendants do not solicit information

from prison wardens or staff about the suitability for release of the inmates under their care. (Compl. ~, 41-42.)

Defendants have eliminated regular consultations among Board

members about candidates for parole, and they no longer regularly

meet in the Board's Richmond office. (Compl. ~ 43.)

According to Plaintiffs, Defendants have arbitrarily used

three-year deferrals of parole review. (Compl. ~ 44.) Defendants

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have reduced the limited opportunities for the inmate's family members to meet with members of the Board. (Compl. ~ 45.)

III. STANDARD OF REVIEW

"A motion to dismiss under Rule 12 (b) (6) tests the sufficiency

of a complainti importantly, it does not resolve contests

surrounding the facts, the merits of a claim, or the applicability

of defenses. II Republican Party of N. C. v. Martin, 980 F. 2d 943,

952 (4th Cir. 1992) (citing 5A Charles A. Wright & Arthur R.

Miller, Federal Practice and Procedure § 1356 (1990)). In

considering a motion to dismiss for failure to state a claim, a

plaintiff's well-pleaded allegations are taken as true and the

complaint is viewed in the light most favorable to the plaintiff.

Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993}i

see also Martin, 980 F.2d at 952. This principle only applies to

factual allegations, however, and "a court considering a motion to

dismiss can choose to begin by identifying pleadings that, because

they are no more than conclusions, are not entitled to the

assumption of truth." (2009) .4

Ashcroft v. Igbal, 129 S. Ct. 1937, 1950

The Federal Rules of Civil Procedure "require [] only 'a short

and plain statement of the claim showing that the pleader is

4 For example, Plaintiffs' allegation that Defendants "arbitrarily" use three parole deferrals of parole is a conclusion, rather than a statement of fact. (Compl. ~ 44.)
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entitled to relief,' in order to \give the defendant fair notice of what the . . claim is and the grounds upon which it rests.'" Bell At!. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (second alteration in original) (guoting Conley v. Gibson, 355 U.S. 41, 47 (1957». That standard is not satisfied by complaints containing only \\labels and conclusions" or a \\formulaic recitation of the elements of a cause of action." Bell Atl. Corp., 550 U.S. at 555 (citations omitted). Instead, a plaintiff must allege facts sufficient \\to raise a right to relief above the speculative level," id. (citation omitted), stating a claim that is \\plausible on its face," id. at 570, rather than merely \\conceivable." Id.
\\A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Igbal, 129 S. Ct. at 1949 (citing Bell Atl. Corp., 550 U.S. at ss6). Thus, a plaintiff must \\allege facts sufficient to state all the elements of [his or] her claim." Bass v. E. I. Dupont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003) (citing Dickson v. Microsoft Corp., 309 F.3d 193, 213 (4th Cir. 2002) i Iodice v. United States, 289 F.3d 270, 281 (4th Cir. 2002)}. Furthermore, \\the complaint's factual allegations must produce an inference of liability strong enough to nudge the plaintiff's claims \across the line from conceivable to plausible.'" Nemet Chevrolet. Ltd. v. Consumeraffairs. com. Inc. , 591 F. 3d 250, 256 (4th Cir. 2009)
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(quoting Iqbal, 129 S. Ct. at 1952 ). "Without such heft, the plaintiff's claims cannot establish a valid entitlement to relief, as facts that are merely consistent with a defendant's liability, fail to nudge claims across the line from conceivable to plausible." Id. (internal citations and quotation marks omitted) .

IV. DUE PROCESS 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 ColIs. v. Roth, 408 U.S. 564, 569-70

(1972). Thus, the first step in analyzing a procedural due process

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) (citing cases). 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 calling for procedural

safeguards call for the same kind of procedure") .

A. The Constitution Itself Does Not Confer a Protected Liberty Interest in Parole Release or Parole ConsiderationS

5 It is necessary to distinguish between parole release and consideration for parole. Although Plaintiffs do not argue that they have a protected interest in parole release, they insist that they have a protected liberty interest in "fair consideration" for parole release and Defendants have denied them due process with respect to this right.
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A liberty interest 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) (en bane)) .
B. Virginia Law Does Not Create a Protected Liberty Interest in Parole Release
"A liberty interest protected by the Fourteenth Amendment must amount to more than an abstract need or desire, or a unilateral hope." Gaston, 946 F.2d at 344 (citation omitted). State laws create a liberty interest only when the statute's language "'plac[es] substantive limitations on official discretion.'" Slezak v. Evatt, 21 F.3d 590, 594 (4th Cir. 1994) (quoting Olim v. Wakinekona, 461 U.S. 238, 249 (1983)). The United States Court of Appeals for the Fourth Circuit explained the fairly exacting nature of this requirement in Slezak as follows:
[C] onstitutionally protected liberty interests are only created by state law regimes which in the end effectively say to inmates: "If facts
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A, B, and C are established in an appropriate fact-finding process, you are thereupon legally entitIed to a more favorable classification than you presently have," or, "Unless facts A, B, and C are so established, you are legally entitled not to be placed in a less favorable classification than you now have."
Id. at 595.
Here, the pertinent statute with respect to parole release
requires the Board to deny parole unless certain requirements are
met:
No person shall be released on parole by the Board until a thorough investigation has been made into the prisoner's history, physical and mental condition and character and his conduct, employment and attitude while in prison. The Board shall also determine that his release on parole will not be incompatible with the interests of society or of the prisoner.
Va. Code Ann. § 53.1-155 (Michie 1986}.6 Contrary to the
Plaintiffs' view (~ CompI. 28), "the pertinent [Virginia]
statutes, far from creating a presumption that release will be
granted . . . absolutely prohibits parole unless the Parole Board
6 The prior version of this statute is almost identical:
No person shall be released on parole by the Board until it has made, or caused to be made, a thorough investigation as to the history, the physical, and mental condition, and the character of the prisoner and his conduct, employment and attitude while in prison, nor until the Board has determined that his release on parole will be compatible with the interests of the prisoner and of society.
Va. Code Ann. § 53-253 (Michie Repl. Vol. 1974).
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decides otherwise." James v. Robinson, 863 F. Supp. 275, 277 (E.D.

Va.) (internal quotation marks omitted), aff'd, No. 94-7136, 1994

WL 709646 (4th Cir. Dec. 22, 1994). "The Fourth Circuit has

examined the [statutory] language and repeatedly held that it does

not create a liberty interest in parole release." Neal v. Fahey,

No. 3:07cv00374, 2008 WL 728892, at *2 (E.D. Va. Mar. 18, 2008)

(citing Hill v. Jackson, 64 F.3d 163, 170-71 (4th Cir. 1995) i

Gaston, 946 F.2d at 344).

C. Plaintiffs Have a Limited Interest in Consideration for Parole

Plaintiffs may enjoy "some constitutionally protected interest

at least in parole \ consideration' subj ect to due process." Hill,

64 F.3d at 170. This limited interest derives from mandatory

statutory language requiring that "the Board shall review and

decide the case of each prisoner no later than that part of the

calendar year in which he becomes eligible for parole, and at least

annually thereafter, until he is released on parole or dischargedll

unless the Board determines that certain criteria exist. Va. Code

Ann. § 53.1-154 (Michie 1993). "Because the inmates here have no

liberty interest in parole release under Virginia law, neither can

they have any liberty interest in the underlying procedures

governing parole determination, themselves satisfy due process. II

so long as the procedures Hill, 64 F. 3d at 171. \\The

question thus becomes what procedures are required under the Due

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Process Clause in [considering] an inmate for discretionary release

on parole." Neal, 2008 WL 728892, at *2.

D. The Complaint Pleads that the Plaintiffs Have Been Afforded Sufficient Process With Respect to Plaintiffs' Limited Liberty Interest in Consideration for Parole.

Addressing the process that is due in respect of consideration

for release on parole, the Fourth Circuit has held that \\inmates

are entitled to no more than minimal procedure." Vann, 73 F. 3d at

522. \\At most

parole authorities must \ furnish to the

prisoner a statement of its reasons for denial of parole.'" Id.

(quoting Franklin v. Shields, 569 F.2d 784, 801 (4th Cir. 1997) (en

bane); citing Bloodgood v. Garraghty, 783 F.2d 470, 473 (4th Cir.

1986}}.7 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. See Bloodgood, 783 F.2d at

475 ("[W]here 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."

(citing Zant v. Stephens, 462 U.S. 862 (1983)). In Bloodgood, the

7 The Fourth Circuit also remarked that there is "no constitutional requirement that each prisoner receive a personal hearing, have access to his files, or be entitled to call witnesses in his behalf to appear before the Board. These are all matters which are better left to the discretion of the parole authorities." Franklin, 569 F.2d at 800. In support of their position, Plaintiffs cite to the panel decision in Franklin. (PIs.' Mem. in Opp'n to Mot. to Dismiss 4.) The Fourth Circuit, sitting en bane, largely rejected the panel's conclusions. See Franklin, 569 F.2d at 800-01.
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Fourth Circuit concluded that the parole board gave constitutionally sufficient reasons when it informed the prisoner that he was denied parole release because of "the seriousness of [his] crime" and his "pattern of criminal conduct." Id. at 472, 474. Thereafter, the Fourth Circuit repeatedly has concluded that "seriousness nature and circumstances" of prisoner's offense is a constitutionally valid reason for denying parole. See Brown v. Johnson, 169 F. App'x 155, 157 (4th Cir. 2006) (No. 05-7496), available at 2006 WL 460912, at *2; Davis v. Jackson, No. 94-6121, 1995 WL 761034, at *1 (4th Cir. Dec. 27, 1995).
Here, the Complaint reflects that the Board has provided each Plaintiff with a constitutionally valid reason for denying them release on discretionary parole. Therefore, the face of the Complaint alleges facts establishing that each Plaintiff has received the process that is required with respect to the limited liberty interest in consideration for parole.
E. Plaintiffs Have No Constitutional Right to the Additional Process They Demand.
Plaintiffs contend that the foregoing analysis "overlooks[s] the key due process right on which the Complaint is based, i.e., the right to a system that is 'fundamentally fair' and includes 'fair' and 'meaningful' consideration of all of the factors that Virginia law requires to be taken into account when making parole determinations regarding parole-eligible inmates." (Pl.'s Mem. in Opp'n to Mot. to Dismiss 4-5.)
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The pertinent precedent show that an inmate may state a due process claim with respect to his limited liberty interest in consideration for parole if the Board denied parole solely upon an irrelevant or invalid factor. See Bloodgood, 783 F.2d at 475. However, contrary to Plaintiffs' insistence, by creating a system of discretionary parole, Virginia did not bind itself to the continued use of any particular procedures in evaluating Plaintiffs for parole. Neal, 2008 WL 728892, at *2 ("The limited liberty interest in parole consideration does not imbue with constitutional significance every procedure that the Parole Board may have employed in evaluating him for parole." (citing Hill, 64 F.3d at 170». "[A] I though the inmates may have some interest in parole consideration generally, it is clear that there is no 'protected liberty interest in the procedures themselves, only in the subject matter to which they are directed.'" Hill 64 F.3d at 170 {gouting Ewell v. Murray, 11 F.3d 482, 488 (4th Cir. 1993».
Plaintiffs' argument that they were denied a right to a "fundamentally fair" parole consideration is little more than an attempt to "federalize-indeed, constitutionalize-every deviation from state procedures." Brandon v. District of Columbia Bd. of Parole, 823 F.2d 644, 649 (D.C. Cir. 1987) (rejecting inmate's claims that he had been denied his right to meaningful parole review hearing). As noted by the Fourth Circuit in rejecting a similar argument:
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Process only assumes significance in a

context. The notion that naked process itself

takes on constitutional dimensions has most

troublesome implications.

Courts have

explicitly and repeatedly rejected the

proposition that an individual has an interest

in a state-created procedural device, such as

a hearing, that is entitled to constitutional

due process protection . . . . Process is not

an end in itself. Its constitutional purpose

is to protect a substantive interest to which

the individual has a legitimate claim of

entitlement .

. The mere fact that the

government has established certain procedures

does not mean that the procedures thereby

become substantive liberty interests entitled

to federal constitutional protection under the

Due Process Clause.

Such state

procedural requirements must be enforced in

state courts under state law.

Hill, 64 F. 3d at 171 (alterations and omissions in original;

internal quotation marks omitted) (quoting Brandon, 823 F.2d at 648-

49) .

Plaintiffs' argument that they were denied their due process

rights by the Board's alleged failure to consider specific factors

listed in the statutes in considering them for parole is likewise

flawed. First, as explained above, the alleged deviation involves

at most a state procedural requirement that would be required to be

enforced in the Virginia courts, under Virginia law. Id.; Riccio

v. County of Fairfax. Va., 907 F.2d 1459, 1469 (4th Cir. 1990) (\\If

state law grants more procedural rights than the Constitution would

otherwise require, a state's failure to abide by that law is not a

federal due process issue."). Second, as discussed below,

Plaintiffs' own submissions reflect that the Board continues to

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consider the other factors listed in statute in evaluating them and other violent inmates for parole.
F. The Factual Allegations of the Complaint Do Not Plausibly Suggest that the Board Has Effectively Abolished Parole for Plaintiffs or Other Violent Offenders Who Committed Their Offense Prior to January 1, 1995.
While Plaintiffs contend that, for violent offenders, the Board does not consider any factors other than the violent nature of the offense in determining the suitability of their release on parole, the allegations in Complaint are not consistent with this conclusion. B Specifically, Plaintiffs state that I "[i] n fiscal years 2006 and 2007, the Board gave only a single reason for approximately 45% of all of its denials of parole -- the 'serious nature and circumstances of crime' or words to that effect." (Compl. ~ 52.) Of course, that allegation per force acknowledges that, in 55% of all denials of parole, the Board considered and denied parole based upon factors others than to "the serious nature and circumstances" of an inmate's offense. Given that violent offenders make up 77.5% of the parole eligible inmates, it appears that, even for violent offenders, the Board regularly considers factors other than the nature of the offense in evaluating them for parole.
8 For example, Plaintiff Burroughs alleges that subsequent to 1995, the Board has considered factors in addition to her murder conviction in denying her release on parole. Specifically, in 2006 the Board denied Burroughs parole based the additional reason that her preincarceration "involvement with drugs indicates disregard for the welfare of others." (Compl. ~ 5.)
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Plaintiffs insist that the rate at which violent offenders are paroled reflects that, the Board "has eliminated fair and meaningful consideration of parole for inmates convicted of violent offenses." (PIs.' Mem. in Opp'n to Mot. to Dismiss 5.) That inference is compatible neither with commonsense nor basic mathematics. Before 1995, there continued to be an influx of new parole eligible inmates into the DOC. After 1995, the pool of inmates eligible for parole was closed. Because, in each year, the Board paroled those inmates most suitable for release, each succeeding year the Board would be considering a smaller pool of applicants who, because of the seriousness of their crimes and other relevant factors, were less suitable for release on parole.
Further, the Complaint reflects that the Board continues to release on parole roughly between 120 to slightly more 230 violent offenders per year. Those figures, of course, show that the Board continues to consider for release on parole violent offenders such as Plaintiffs. Under those circumstances, it is logical that the rate at which inmates are paroled would decrease over time for reasons other than unfairness.
Although Plaintiffs may believe that Defendants should give greater weight to their rehabilitation and less weight to their serious crimes, neither the pertinent statues nor the Due Process Clause requires them to do so. Plaintiffs cite Irons v. Carey, 505 F.3d 846, 850 (9th Cir. 2007) and Biggs v. Terhune, 334 F.3d 910,
23

917 (9th Cir. 2003) for the proposition that continued reliance on

an unchanging factor, such as the circumstances of the offense, to

deny parole because at some point is unfair, and violates due

process principles. The United States Court of Appeals for the

Ninth Circuit recently has overruled those cases holding that:

These decisions may be read to mean that a

parole-eligible prisoner has a constitutional

right to be released unless there is "some

evidence" of future dangerousness. If there is

any right to release on parole, or to release

in the absence of some evidence of future

dangerousness, it has to arise from

substantive state law creating a right to

release. To the extent our prior decisions

including Biggs v. Terhune,

Irons v.

Carey, and our panel decision in this case

might be read to imply that there is a federal

constitutional right regardless of whether

state law entitles the prisoner to release, we

rej ect that reading and overrule those

decisions to the extent they may be read to

mean that.

Hayward v. Marshall, 603 F.3d 546, 555 (9th Cir. 2010).

For the foregoing reasons, Count I, alleging violations of

due process, fails the sufficiency standards set by Twombly and

Igbal.

v. EX POST FACTO ANALYSIS
In Count II, the Complaint alleges that the "conduct of the Board constitutes an ~ post facto enhancement of the punishments imposed upon the named Plaintiffs and members of the class at their respective sentencings in violation of Article I, § 10, cl.

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Case 3:10-cv-00070-REP Document 20 Filed 10/25/10 Page 24 of 28

Case 3:10-cv-00070-REP Document 20 Filed 10/25/10 Page 25 of 28
1 of the united States Constitution." (Compl. ~ 77) This count also is legally insufficient and must be dismissed.
The United States Constitution prohibits federal and state governments from passing any ex post facto law. U.S. Const. art. I, § 9 , cl. 3; id. art. I, § 10 , cl. 1. An ex post facto law " 'makes more burdensome the punishment for a crime I after its commission. III Collins v. Youngblood I 497 U.S. 37 , 42 (1990) (guoting Beazell v. Ohio , 269 U.S. 167 , 169-70 (1925)). Changes to parole laws that create \'a sufficient risk of increasing the measure of punishment attached to the covered crimes" violate the Ex Post Facto clause. Cal. Dep/t of Corr. v. Morales , 514 U.S. 499 , 509 (1995). That said, "[a]s the constitutional text makes clear , the ex post facto prohibition applies to 'laws. '11 Warren v. Baskerville, 233 F.3d 204 , 207 (4th Cir. 2000) (citing United States v. Ellen, 961 F.2d 462 , 465 (4th Cir. 1992); Prater v. U.S. Parole Comm/n , 802 F.2d 948 , 951 (7th Cir. 1986». "A change in an administrative policy that was in effect at the time of a criminal/s underlying offenses does not run afoul of the prohibition against ex post facto laws." Id. (citing Ellen, 961 F.2d at 465) .
The Supreme Court has found that a retroactively applied change to a parole regulation or guideline may violate the Ex Post Facto Clause if it "creates a significant risk of prolonging [an inmate's] incarceration. II Garner v. Jones, 529 U.S. 244, 251
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Case 3:10-cv-00070-REP Document 20 Filed 10/25/10 Page 26 of 28
(2000) . Nevertheless, "the Fourth Circuit has interpreted Garner
to apply only to parole regulations that are legislative rules
rather than merely changes in 'an administrative policy that was
in effect at the time of a criminal's underlying offenses.' II
Lyons v. U.S. Parole Comm'n, No. 3:08cv342, 2009 WL 211583, at *3
(E.D. Va. Jan. 28, 2009) (guoting Warren, 233 F.3d at 2007).9 In
rej ecting the plaintiffs' ex post facto claim in Warren, the
Fourth Circuit observed that "the Virginia Parole Board made a
policy decision that was within the parameters of existing state
law. If the States are to have any freedom in developing optimal
parole systems, they must be able to make policy adjustments
9 A legislative rule "has the force of law, and creates new law or imposes new rights or duties." Jerri's Ceramic Arts, Inc. v. Consumer Prod. Safety Comm'n, 874 F.2d 205, 207-08 (4th Cir. 1989) (citing cases). Legislative rules stand in contrast with interpretive rules, which do not implicate the Ex Post Facto Clause. Ellen, 961 F.2d at 465-66. '" [I]nterpretive rules simply state what the administrative agency thinks the statute means, and only 'remind' affected parties of existing duties. '" Id. at 465(alteration in original) (guoting Jerri's Ceramic Arts, Inc., 874 F.2d at 207). "Unlike legislative rules . . . interpretative rules are statements of enforcement policy. They are ... merely guides, and not laws: guides may be discarded where circumstances
require; laws may not." Id. at 4 (internal quotations omitted;
second omission in original). For example, the Supreme Court has concluded that the federal Sentencing Guidelines "are the equivalent of legislative rules adopted by federal agencies. II Stinson v. United States, 562 U.S. 36, 44 (1993); see also, United States v. Morris, 562 F.3d 1131, 1135 (10th Cir. 2009). Thus, changes to the Sentencing Guidelines are subject to review under the Ex Post Facto Clause. United States v. Lewis, 606 F.3d 193, 203 (4th Cir. 2010) (concluding that "given the importance our precedent places on the proper calculation of the advisory Guidelines range," the Ex Post Facto Clause precluded the application of a newer version of the Sentencing Guidelines that might increase a defendant's sentence).
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Case 3:10-cv-00070-REP Document 20 Filed 10/25/10 Page 27 of 28
without raising the specter of constitutional litigation." Warren, 233 F.3d at 208 (citing Garner, 529 U.S. at 252; Roller v. Gunn, 107 F.3d 227, 237 (4th Cir. 1997)); see also Vann, 73 F.3d at 521 ("It is difficult to imagine a context more deserving of federal deference than state parole decisions.") .
Plaintiffs contend that Defendants have violated the prohibition against ex post facto laws because they "have replaced the exercise of discretionary judgment required under [section 53.1-155 of the Virginia Code] with their own scheme in which violent offenders are automatically denied parole solely because of their crimes, without any consideration of the other parole factors specified by Virginia law." (PIs.' Surreply Mem. 6.) As explained previously, this claim fails as a factual implausibility because the complaint refutes the notion that such a scheme or policy exists because it alleges that the Defendants continue to exercise their discretion and release on parole roughly 120 to 230 violent offenders per year.
Additionally, Plaintiffs' ex post facto claim fails because the Plaintiffs have not tied their allegations about an increased risk of punishment to the implementation a particular rule or regulation. See Foster v. Booker, 595 F.3d 353, 362-63 (6th Cir. 2010) (emphasizing an ex post facto claim alleging increased risk of punishment must be linked to "some legal change other than a difference in the proper exercise of discretion"). At best, the
27

Case 3:10-cv-00070-REP Document 20 Filed 10/25/10 Page 28 of 28

Complaint indicates there has been a decrease in the rate at which inmates are released on parole. Plaintiffs fail to allege facts that plausibly suggest that any significant risk of longer incarceration is attributable to the implementation of a new law, rather than the Board's legitimate exercise of its discretion.

If the Parole Board decided within its discretion to get tougher, that could hardly amount to an ex post facto violation as long as it was within the Parole Board's discretion to get tougher. This would be true ... even if the Board members independently developed a tougher attitude, and even if the Board members partook of a general public attitude that parole decisions should be tougher.

Id. at 362.

For the foregoing reasons, Count II is legally insufficient

under Twombly and Igbal. Therefore, the MOTION TO DISMISS (Docket

No.3) will be dismissed. The dismissal of the Complaint as

legally insufficient necessitates that the PLAINTIFFS' MOTION FOR

LEAVE TO CONDUCT LIMITED DISCOVERY PRIOR TO A RULE 26(f) CONFERENCE

(Docket No. 15) will be denied and John R. Lay's MOTION/PETITION

FOR JOINDER AS PARTY PETITIONER(S)/PLAINTIFF(S) (Docket No.8) will

be denied. The action will be dismissed.

It is so ORDERED.

lsi
Robert E. Payne Senior United States District Judge

Richmon~~ini~

Date:

~ J..S, b41(J

t

28

 
 Case 3:10-cv-00070-REP Document 4 Filed 03/01/10 Page 1 of 14

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

SHARON BURNETTE, PAMELA K. BURROUGHS, FRANK CARTER, JR., EDWARD CONQUEST, DONALD W. HOFFMAN, MONTY KING, LARRY MACON, MARVIN MCCLAIN, BENJAMIN PERDUE, JR., HENRY STUMP And BARBARA TABOR, suing on behalf of themselves and others similarly situated,

Plaintiffs,

v.

Civil Action No. 3:10cv70

HELEN F. FAHEY, in her capacity as Chair of the Virginia Parole Board; CAROL ANN SIEVERS, in her capacity as Vice-Chair of the Virginia Parole Board; and JACKIE T. STUMP, MICHAEL M. HAWES, and RUDOLPH C. MCCOLLUM, JR., in their capacity as Members of the Virginia Parole Board,

Defendants.

MEMORANDUM IN SUPPORT COME NOW the Defendants, Helen F. Fahey, Carol Ann Sievers, Jackie T. Stump, Michael M. Hawes, and Rudolph C. McCollum, Jr. (hereinafter collectively referred to as “The Virginia Parole Board”), by counsel, and in support of their motion to dismiss submit the following. Plaintiffs, all inmates within the custody of the Virginia Department of Corrections, have filed, by counsel, this action pursuant to 42 U.S.C. § 1983 alleging violation of their constitutional rights with regard to discretionary parole release. Specifically they allege the following Claims:

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CLAIM I. The Virginia Parole Board has adopted practices, policies and procedures that deprive Plaintiffs of their “fair or meaningful consideration of parole.” Class Action Complaint (hereinafter “Complaint”) ¶ 27. Specifically, Plaintiffs contend that the Virginia Parole Board:
a. discontinued the use of a set of Parole Guidelines that contained a risk assessment tool;
b. repealed its laws governing the granting of parole and has never replaced them in violation of Virginia law;
c. has relied primarily, if not exclusively, on the “serious nature and circumstances of the crime;”
d. abandoned the practice of “face to face” interviews with inmates but instead relies on hearing examiners and video conferences;
e. does not regularly meet with its parole hearing examiners but instead accesses the examiners’ reports electronically;
f. does not solicit information from prison wardens and other prison employees regarding the suitability of the inmate for release on discretionary parole;
g. does not meet in person regularly to exchange views about the inmate candidates for parole;
h. reduced the frequency of meetings with the inmates’ families to once every two years while the VPB diligently attempts to contact the victim prior to any decision; and
i. has exercised its power to defer inmate’s parole consideration in an arbitrary manner.
CLAIM II. The changes in attitude and practices of the Virginia Parole Board since the abolition of parole effectively constitute an ex post facto enhancement of the Plaintiffs’ criminal sentences.
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Plaintiffs collectively request that they be certified as a class, and granted declaratory and injunctive relief.
COUNT I (Due Process) Plaintiffs challenge the procedures used by the Virginia Parole Board in denying their collective releases on parole. They allege that the policies and practices constitute a failure to make informed decisions, exercise discretion, and give fair and meaningful consideration of parole, all in violation of the Plaintiffs’ rights to due process. Plaintiffs have failed to state a claim of due process. The Due Process clause applies when governmental action deprives a person of a legitimate liberty or property interest. Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972). The first step in analyzing a procedural due process claim is to identify whether the alleged conduct affects a protected interest. Board of Regents v. Roth, supra; Beverati v. Smith, 120 F.3d 500, (4th Cir. 1997). There is no constitutional 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, 99 S. Ct. 2100, 60 L. Ed. 2d 668 (1979). In fact, a valid criminal conviction extinguishes that liberty right. Meachum v. Fano, 427 U.S. 215, 96 S. Ct. 2532, 49 L. Ed. 2d 451 (1976). However, a liberty interest can be created by a parole system if that parole system mandates an inmate’s release upon certain conditions. Board of Pardons v. Allen, 482 U.S. 369 (1987); Greenholtz, supra. If, however, the state holds out only the possibility of parole, that hope is not protected by due process. Greenholtz at 11 (citing Meachum v. Fano, supra). The relevant statutes are the statutes of parole in effect at the time that the inmate committed his criminal offense. The eleven plaintiffs committed their offenses between
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1973 through 1986. With minor changes to the statutes, the essence of the statutes though has remained constant. Va. Code § 53-252 prohibited the release on parole of any person… until the Parole Board “has determined that his release on parole will be compatible with the interests of the prisoner and of society.” 1 By 1982, the corresponding statute had changed only slightly to state that the Board should not release on parole any person if it determines that his release on parole “will not be incompatible with the interests of society or of the prisoner.” Va. Code § 53.1-155 (1982 Repl. Vol.)2.
None of Virginia’s parole statutes create a presumption that release will be granted but rather prohibit parole unless the Parole Board decides otherwise. See James v. Robinson, 863 F. Supp. 275 (E.D. Va. 1994), aff’d mem., 45 F.3d 426 (1994). The Virginia system of discretionary parole does not grant inmates a liberty interest in parole release. Gaston v. Taylor, 946 F.2d 340 (4th Cir. 1991)(en banc); Sumner v. Tucker, 9 F. Supp. 2d 641 (1998). Furthermore, because inmates have no liberty interest in parole release under Virginia law, “neither can they have any liberty interest in the underlying procedures governing parole determination, so long as the procedures themselves satisfy due process.” Hill v. Jackson, 64 F.3d 163, 171 (4th Cir., 1995). In reviewing specific procedural requirements, the Fourth Circuit rejected the notion that due process requires that the inmate be given access to his prison files, that he be allowed to call witnesses, or that the Parole Board needs to provide any published criteria which govern their decisions. Franklin v. Shields, 569 F.2d 784, 800 (4th Cir. 1977)(en banc)(per curiam). Even where a parole statute establishes a liberty interest, inmates are entitled to no more
1 See also Va. Code § 238(2) (1974 Repl. Vol.)(Parole Board shall release on parole only when such persons are found “suitable for parole”). 2 See also Va. Code 53.1-136(2) (1982 Repl. Vol.) (Parole Board shall release on parole only when such persons are found “suitable for parole”).
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Case 3:10-cv-00070-REP Document 4 Filed 03/01/10 Page 5 of 14
than minimal procedure. At most, due process requires that the Virginia Parole Board furnish the prisoner with a statement of its reasons for the denial of parole. Vann v. Angelone, 73 F.3d 519 (4th Cir. 1996); Franklin v. Shields, supra.
Since becoming eligible for parole consideration, Plaintiffs have been reviewed and have received reasons for the denial of parole release. Plaintiffs do not contest that they have been reviewed timely or that they have received their decisions. See Complaint ¶¶ 6-14, 24. Instead they challenge that the decisions were a product of a lack of fair and meaningful consideration. Since the Plaintiffs have been furnished with statements of the reason(s) for the denial of parole, and this is all the process constitutionally required of the Virginia Parole Board, Plaintiffs have received the process to which they are entitled and this Claim must be dismissed. Vann v. Angelone, supra, Franklin v. Shields, supra. (a) Risk Assessment Guidelines
Plaintiffs allege that the Parole Board has discontinued the use of parole guidelines which contained a risk assessment tool. Since Virginia has a discretionary parole scheme, the procedures for evaluating an inmate for parole “may be changed at the will of the prison officials so long as they afford the process that is due under the Due Process Clause of the Fourteenth Amendment.” Hill v. Jackson, 64 F.3d at 171. Since Defendants have afforded all the process to which Plaintiffs were due, by providing a statement of the reason(s) denying parole, this claim must fail. See also Bloodgood v. Garraghty, 783 F.2d 470 (4th Cir. 1986). Furthermore, parole guidelines are “strictly advisory for the Board members to follow at their discretion.” James v. Robinson, 863 F.
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Case 3:10-cv-00070-REP Document 4 Filed 03/01/10 Page 6 of 14
Supp. at 277. Such guidelines never impinged on the “absolute discretion of the Board when acting on parole applications.” James v. Robinson, 863 F. Supp. at 277. (b) General Rules Governing the Granting of Parole.
Plaintiffs allege that the Parole Board has not established general rules governing the granting of parole. In support of this assertion, they allege that previously such rules were published in the Virginia Administrative Code but were repealed in 1998. Although Plaintiffs acknowledge that the Parole Board then published a Policy Manual stating the 14 factors considered by the Parole Board in making its parole grant decisions, they state that this violates Virginia law. Complaint ¶ 38. Violations of procedures under state law are insufficient to give rise to any federal due process claim. See Riccio v. County of Fairfax, 907 F. 2d 1459 (4th Cir. 1990).3 (c) Reasons for Denial of Parole.
Plaintiffs challenge the Parole Board’s reliance on the “serious nature and circumstances of the crime” as a basis for denying parole release. The Supreme Court has explained that a parole determination “must include considerations of what the entire record shows up to the time of the sentence, including the gravity of the offense in the particular case.” Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 15 (1979). Additionally, the Fourth Circuit has held that reliance on the serious nature of the offense is constitutionally valid and therefore is a constitutionally sufficient reason for denying discretionary parole. Bloodgood v. Garraghty, 783 F. 2d 470, 475 (4th Cir. 1986); Smith
3 Pursuant to Va. Code § 53.1-136, the Parole Board is to adopt, subject to approval by the Governor, general rules governing the granting of parole and eligibility requirements, which shall be published and posted for public review. Such rules were created, approved and posted accordingly. They, as well as the posting of the decisions of the Parole Board, are available at http://www.vadoc.state.va.us/vpb/. There is a presumption of regularity that government agencies act within the parameters of the law. United States Postal Service v. Gregory, 534 U.S. 1, 122 S. Ct. 431, 151 L. Ed. 2d. 323 (2001). “Absent a demonstration to the contrary, we presume the Board follows its statutory commands and internal policies in fulfilling its obligations.” Garner v. Jones, 529 U.S. 244, 256, 120 S. Ct. 1362, 146 L. Ed. 2d. 236 (2000)
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v. Hambrick, 637 F.2d 211 (4th Cir. 1980); see also Jennings v. Virginia, 61 F. Supp. 2d 462 (E.D. Alexandria, 1999)(“serious nature of the offense” is a constitutionally sufficient reason on which to deny parole). (d)-(h) Miscellaneous Parole Board Policies and Procedures.
Plaintiffs challenge the lack of face to face interviews with inmates, the use of hearing examiners4, the use of video conferencing, the failure to solicit input from prison wardens and other officials, the lack of regular meetings, and the reduction of the frequency of meetings with inmates’ families while it diligently attempts to contact the victim prior to any decision.5
None of these alleged practices or policies implicate any due process violations. None of these practices are prohibited by the Constitution and they would not necessarily inure to the benefit of parole candidates. Plaintiffs cite no legal authority to support the proposition that any of these practices are constitutionally or statutorily required. Furthermore, the law is clear that the Plaintiffs have no liberty interests in the procedures of the Parole Board. “[A]lthough the inmates may have some interest in parole consideration generally, it is clear that there is no ‘protected liberty interest in the procedures themselves, only in the subject matter to which they are directed.’” Hill v. Jackson, 64 F.3d at 170 (quoting Ewell v. Murray, 11 F.3d 482, 488 (4th Cir. 1993). (i) Deferrals of Parole.
Plaintiffs allege that the Parole Board has deferred parole consideration in an arbitrary manner. Plaintiffs acknowledge that the Parole Board is permitted by statute to
4 “In the discretion of the Board, interviews may be conducted by the Board or its representatives and may be either public or private.” Va. Code § 53.1-154. 5 The Parole Board is obligated by statute to attempt to contact the victim prior to any decision. “The Board shall endeavor diligently to contact the victim prior to making any decision to release any inmate on discretionary parole.” Va. Code § 53.1-155.
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Case 3:10-cv-00070-REP Document 4 Filed 03/01/10 Page 8 of 14
defer parole consideration of inmates meeting certain criteria for up to three years. Complaint ¶ 44; see Va. Code § 53.1-154. They state though that “the Board has made use of such three-year denials in a completely arbitrary manner” by alternating three year denials with one year denials “with no apparent basis for the distinction.” Complaint ¶ 44.
The Virginia Parole Board’s deferral policy does not violate due process. “Because the inmates’ ‘right’ to annual parole review here is a procedural function of Virginia’s parole scheme rather than a substantive right unto itself, the Constitution does not afford that ‘right’ any protection under the Due Process Clause.” Hill v. Jackson, 64 F.3d at 171. Just because Plaintiffs do not understand the reason for the deferrals and annual reviews does not mean that those decisions were done in an arbitrary and capricious manner. Plaintiffs do not assert that the deferrals were ever misapplied to an inmate whose case did not fit the criteria. Deferrals allow the Parole Board to avoid reviewing cases pro forma but to instead set reviews “according to the likelihood that a review will result in meaningful considerations as to whether an inmate is suitable for release.” Garner v. Jones, 529 U.S. 244, 120 S. Ct. 1362, 146 L. Ed. 2d. 236 (2000). The annual reviews held in between three year deferrals provide an additional opportunity for the Parole Board to evaluate whether there is a change or likelihood of change in the near future to suggest a greater possibility of release on parole. Notwithstanding Plaintiffs’ conclusory assertion that the decisions to defer were arbitrary or capricious, Plaintiffs have made no such factual showing. More importantly though, since the inmates have no liberty interest in the procedural functions of the Virginia
8

Case 3:10-cv-00070-REP Document 4 Filed 03/01/10 Page 9 of 14
parole process, they do not have any liberty interest in the decision to defer the hearing. Hill v. Jackson, 64 F.3d 163 (4th Cir., 1995).6
Plaintiffs also allege a number of policy characterizations and arguments that do not raise any issues pertaining to due process. Plaintiffs allege the Parole Board has adopted procedures which make it difficult to hold individual Board Members “accountable” (Complaint ¶ 46); that the parole process has become more “opaque” (Complaint ¶ 46); that parole is being denied in spite of “detailed and reliable release plans” (Complaint ¶ 53); that parole is being denied despite inmates’ advancing age (Complaint ¶ 54); and that the Parole Board considers sentencing guidelines (Complaint ¶ 59). None of these statements, even if true, support any claim under a due process analysis. Parole procedures may be changed at the will of prison officials so long as they afford the process required by Due Process. Ewell v. Murray, 11 F.3d 482 (4th Cir. 1993). “[A]lthough the inmates may have some interest in parole consideration generally, it is clear that there is no ‘protected liberty interest in the procedures themselves, only in the subject matter to which they are directed.’” Hill v. Jackson, 64 F.3d at 170 (quoting from Ewell v. Murray, 11 F.3d at 488). The Virginia Parole Board is charged with deciding which inmates are suitable for discretionary release on parole. Va. Code §53.1-136 and § 53.1-155. Under Virginia law, the Board has absolute discretion in matters of early parole release. Garrett v. Commonwealth, 14 Va. App. 154 (1992). The decision to release an inmate on discretionary parole is not subject to crossing off items on a checklist. The decision to grant parole is dependent upon
6 Even if there were a liberty interest in the deferral decision, to constitute a due process violation based on an agency acting in an arbitrary and capricious manner, Plaintiffs must show that there is no evidence to support the action. Prison administrators satisfy due process requirements if there is “some evidence” on the record to support their findings. Superintendent v. Hill, 472 U.S. 445 (1985).
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“subjective evaluations and predictions of future behavior.” Hill v. Jackson, 64 F.3d 163 (4th Cir. 1995)(quoting from Gaston v. Taylor, 946 F.2d 340 (4th Cir. 1991) (en banc.)).
Based on Plaintiffs’ assertions, it is clear that Defendants have duly considered the Plaintiffs in their attempt to be released on discretionary parole and provided the Plaintiffs with a statement of the reasons that parole was denied. Their complaints about policies and practices notwithstanding, Plaintiffs have received all of the process to which they are constitutionally entitled. See Vann v. Angelone, supra, Franklin v. Shields, supra. Having failed to state a claim under due process, Claim I must be dismissed.
COUNT II (Ex Post Facto) Plaintiffs allege that the “conduct of the Board” constitutes an ex post facto enhancement of their criminal punishments. Complaint ¶ 77. Specifically, they allege that “the Board’s actions have increased the punishment for Plaintiffs’ crimes beyond the expectations and assumptions that the courts, prosecutors and defense counsel had at the time of sentencing….” (Complaint ¶ 27). Plaintiffs do not specify any additional practices or policies but simply contend that the same practices and policies discussed in Claim I amount to a violation of the Ex Post Facto Clause. The Constitution prohibits states from passing any “ex post facto Law.” U.S. Const., art. I, § 10, cl. 1; and U.S. Const., art. I § 9, cl. 3. The Ex Post Facto Clause applies to laws made or changed after the date of the underlying criminal offense. The Ex Post Facto Clause bars enactments, which by retroactive application, increase the punishment for a crime that has already been committed.” Warren v. Baskerville, 233 F.3d 204, 206 (4th Cir. 2000). In some instances, retroactive changes in laws governing
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parole of prisoners may violate the Ex Post Facto Clause. See Lynce v. Mathis, 519 U.S. 433 445-446 (1997). The controlling inquiry is whether retroactive application of the changed law created “a substantial risk of increasing the measure of punishment…” Garner v. Jones, 529 U.S. 244, 250 (2000) quoting California Dept. of Corrections v. Morales, 514 U.S. 499, 509 (1995). The constitutional prohibition against Ex Post Facto laws does not extend to changes in administrative policies unless they have the force and effect of law. United States v. Ellen, 961 F.2d 462 (4th Cir. 1992).
Plaintiffs have not identified any change in law that has been retroactively applied to their parole considerations. Instead, they allege that “beginning in 19957 the Board began to adopt and implement practices, policies and procedures that had the intent and/or effect of abolishing parole retroactively…” Complaint ¶ 36. Plaintiffs do not contend that law abolishing parole has been applied to them since Plaintiffs admit that they have been duly considered by the Parole Board and have been issued statements providing the reasons for the denial of parole. See Complaint ¶¶ 6-14, 24. Plaintiffs acknowledge that, after the abolition of parole, parole eligible inmates are still being granted parole. Complaint ¶ 47. Furthermore, Plaintiffs acknowledge that even violent offenders are still being granted parole. Complaint ¶ 47. They assert however, that the percentage rate of parole grants has been reduced since the abolition of parole and that this is most apparent as applied to the violent offenders. They assert that violent offenders, even those that are granted parole, are being forced to serve more of their criminal sentence than in previous years. Complaint ¶ 48. Plaintiffs contend that it is the changes in attitudes, practices and policies which constitute the ex post facto violation.
7 Va. Code § 53.1-165.1 abolishes parole for any felony offenses committed on or after January 1, 1995.
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Case 3:10-cv-00070-REP Document 4 Filed 03/01/10 Page 12 of 14
Plaintiffs cannot establish an ex post facto violation based on Defendants adopting less favorable attitudes, guidelines, policies, or practices. Warren v. Baskerville, supra. “As the constitutional text makes clear, the ex post facto prohibition applies to ‘laws.’” Warren v. Baskerville, 233 F.3d at 207; see Garner v. Jones, supra. None of the Board’s conduct, as alleged by Plaintiffs, amount to anything more than policy or practice changes. Changes to policy or practice in enforcing the parole laws are not prohibited by the Ex Post Facto Clause. Warren v. Baskerville, 233 F.3d at 207. Indeed, in the exercise of discretion, it is expected that changes will occur.
[W]here parole is concerned discretion, by its very definition, is subject to changes in the manner in which it is informed and then exercised. The idea of discretion is that it has the capacity, and the obligation, to change and adapt based on experience. New insights into the accuracy of predictions about the offense and the risk of recidivism consequent upon the offender’s release, along with a complex of other factors will inform parole decisions. Garner v. Jones, 529 U.S. at 253. None of the Plaintiffs have served the full term of their criminal sentences. See Complaint ¶¶ 61-67, 69-718. The Parole Board’s failure to grant early parole release to Plaintiffs does not increase the measure of the punishment imposed by the Virginia courts and juries. Accordingly, Plaintiffs’ ex post facto argument fails to state a claim upon which relief may be granted and must be dismissed. Wherefore, Defendants respectfully request this Court grant their motion and dismiss the complaint against them.
Respectfully Submitted,
8 Plaintiffs are all “serving lengthy prison sentences” (Complaint ¶ 1). Most are serving one or more life sentences, with the shortest sentence identified being 80 years. Plaintiffs’ pleading discloses specific sentences for all but one Plaintiff, Marvin McClain. Upon information and belief, McClain is serving a sentence of life for the offense of homicide in addition to a term of years for other offenses.
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Case 3:10-cv-00070-REP Document 4 Filed 03/01/10 Page 13 of 14
HELEN F. FAHEY CAROL ANN SIEVERS JACKIE T. STUMP MICHAEL M. HAWES RUDOLPH C. MCCOLLUM, JR.
By______________/s/______________ Counsel
Richard C. Vorhis, SAAG, VSB #23170 Attorney for Defendants Office of the Attorney General Public Safety and Enforcement Division 900 East Main Street Richmond, Virginia 23219 Phone: 804-786-4805 Fax: 804-786-4239 rvorhis@oag.state.va.us
CERTIFICATE OF SERVICE I hereby certify that on the 1st day of March, 2010, I will electronically file the
foregoing with the Clerk of Court using the CM/ECF system, which will then send a
notification of such filing (NEF) to the following:
Stephen A. Northup, Esquire TROUTMAN SANDERS LLP, Post Office Box 1122, Richmond, Virginia 23218-1122 steve.northup@troutmansanders.com
Robert A. Angle, Esquire TROUTMAN SANDERS LLP Post Office Box 1122, Richmond, Virginia 23218-1122 Robert.angle@troutmansanders.com
Alex R. Gulotta, Esquire Legal Aid Justice Center 100 Preston Avenue, Charlottesville, Virginia 22903 alex@justice4all.org
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Case 3:10-cv-00070-REP Document 4 Filed 03/01/10 Page 14 of 14 And I hereby certify that I will mail the document by U.S. mail to the following non-filing user: N/A
______________/s/_______________ Richard C. Vorhis, SAAG, VSB #23170 Attorney for Defendants Office of the Attorney General Public Safety and Enforcement Division 900 East Main Street Richmond, Virginia 23219 Phone: 804-786-4805 Fax: 804-786-4239 rvorhis@oag.state.va.us
14

 
 ~\ :EB ~3 2~~:' J~' IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

CLERK, U.S. DISTRICT COURT RICHMOND VA

SHARON BURNETTE, PAMELA K. BURROUGHS, )

FRANK CARTER, JR., EDWARD CONQUEST,

)

DONALDW. HOFFMAN, MONTY KING,

)

LARRY MACON, MARVIN MCCLAIN,

)

BENJAMIN PERDUE, JR., HENRY STUMP and

)

BARBARA TABOR,

)

suing on behalf of themselves and all others

)

similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

HELEN F. FAHEY, in her capacity as Chair of the )

Virginia Parole Board; CAROL ANN SIEVERS, in her )

capacity as Vice-Chair of the Virginia Parole Board; and)

JACKIE T. STUMP, MICHAEL M. HAWES, and

)

RUDOLPH C. MCCOLLUM, JR., in their capacity as )

Members of the Virginia Parole Board,

)

)

Defendants.

)

Civil Action No. 3'-IDCV It.)

CLASS ACTION COMPLAINT Plaintiffs Sharon Burnette, Pamela K. Burroughs, Frank Carter, Jr., Edward Conquest, Donald W. Hoffman, Monty King, Larry Macon, Marvin McClain, Benjamin Perdue, Jr., Henry Stump and Barbara Tabor, by counsel, bring this class action on behalf ofthemselves and all other similarly situated inmates and for their causes of action allege as follows:
NATURE OF THE CASE 1. This is a suit for declaratory and injunctive relief on behalf of a class of inmates in Virginia's prisons whose constitutional rights are being violated by the practices, policies and procedures of the Virginia Parole Board ("the Board"). Plaintiffs were convicted of "violent" offenses committed prior to January 1, 1995, and have been legally eligible for parole

under Virginia law for eleven years or more. Plaintiffs are serving lengthy prison sentences that were imposed at a time when the expectations and assumptions of the courts, prosecutors and defense counsel were that Plaintiffs would receive fair and meaningful consideration for parole, as required by Virginia law, if they demonstrated themselves suitable for release once they became eligible for parole. These expectations and assumptions, however, were misplaced. In the years since enactment of Virginia Code § 53.1-165.1 abolishing parole for offenses committed on or after January 1, 1995, the Board has administered the parole process in a manner that eliminates any fair or meaningful consideration of parole for Plaintiffs, thus effectively abolishing parole retroactively even for offenses committed prior to January 1, 1995. Specifically, the Board has adopted and implemented practices, policies and procedures for making parole determinations without considering all the circumstances that Virginia law requires to be considered, resulting in a drastic reduction in the availability of parole for inmates convicted of violent offenses and the defacto abolition of the provisions of Virginia law governing parole for such inmates. Moreover, these practices, policies and procedures have created a significant risk of increasing the measure of punishment attached to such inmates' crimes at the time of sentencing. The Board's actions have violated due process and constitute an ex postfacto enhancement of Plaintiffs' punishments, in violation of the United States Constitution.
JURISDICTION AND VENUE 2. This action arises under 42 U.S.C. § 1983 because it is a suit for declaratory and injunctive relief to address the deprivation, under color of state law, of rights, privileges and immunities secured to Plaintiffs by the Constitution of the United States. This Court has subject matter jurisdiction pursuant to 28 U.S .c. §§ 1331 and 1343.
2

3. Venue is proper in the Eastern District of Virginia pursuant to 28 U.S.C. § 1391, because the Board's offices are located, and most or all of Defendants reside and may be found, in the Eastern District of Virginia, and a substantial part of the events or omissions giving rise to Plaintiffs' claims have occurred in the Eastern District of Virginia.
THE PARTIES The Plaintiffs 4. Plaintiff Sharon Burnette is a 49-year old prisoner in the custody of the Virginia Department of Corrections ("DOC") at Fluvanna Correctional Cent.er for Women. She has been incarcerated for more than 28 years. She first became eligible for parole in 1994. By letter dated February 22,2009, the Parole Board denied her parole for the twelfth time. On each occasion, the sole reason given for the denial has been "the serious nature and circumstances of the crime" or words to that effect. 5. Plaintiff Pamela K. Burroughs is a 53-year old prisoner in the custody of the DOC at Virginia Correctional Facility for Women in Goochland. She has been incarcerated for more than 23 years. She first became eligible for parole in 1999. On December 16,2009, the Parole Board denied her parole for the seventh time. With one exception, on each occasion the sole reason given for the denial has been "the serious nature and circumstances of the crime" or words to that effect. The exception occurred in 2006 when the denial included an additional reason - "involvement with drugs indicates disregard for the welfare of others." Burroughs has had no involvement with drugs during her incarceration. 6. Plaintiff Frank Carter, Jr. is a 58-year old prisoner in the custody of the DOC at Coffeewood Correctional Center. He has been incarcerated for more than 32 years. He first became eligible for parole in 1986. By letter dated October 11,2009, the Board denied him parole for the twenty-third time. With one exception, on each occasion the sole reason given for
3

the denial has been "the serious nature and circumstances of the crime" or words to that effect. The exception occurred in 1988 when the denial included an additional reason, "poor institutional conduct," which was likely a reference to a disciplinary charge he incurred for consensual conduct with his wife during a visit in 1987.
7. Plaintiff Edward Conquest is a 54-year-old prisoner in the custody of the DOC at Greensville Correctional Center. He has been incarcerated for more than 34 years. He first became eligible for parole in 1988. By letter dated December 2, 2009, the Parole Board denied him parole for the twenty-second time. On each occasion, the sole reason given for the denial has been the "serious nature and circumstances of the crime" or words to that effect.
8. Plaintiff Donald W. Hoffman is a 52-year-old prisoner in the custody of the DOC at Powhatan Correctional Center. He has been incarcerated for more than 31 years. He first became eligible for parole in 1991. By letter dated February 2,2009, the Parole Board denied him parole for the fourteenth time. On each occasion, the sole reason given for the denial has been the "serious nature and circumstances of the crime" or words to that effect.
9. Plaintiff Monty King is a 43-year-old prisoner in the custody of the DOC at Greensville Correctional Center. (Although King has obtained a court-approved change of his legal name, DOC refers to him by the name under which he entered DOC, Imond Monty Hicks.) King has been incarcerated for more than 23 years. He first became eligible for parole in 1999. By letter dated December 2,2009, the Board denied him parole for the eighth time. On each occasion, the sole reason given for the denial has been the "serious nature and circumstances of the crime" or words to that effect.
10. Plaintiff Larry Macon is a 53-year-old prisoner in the custody of the DOC at Greensville Correctional Center. He has been incarcerated for more than 33 years. He first became eligible for parole in 1990. By letter dated November 8, 2008, the Parole Board denied
4

him parole for the eighteenth time. On each occasion, the sole reason given for the denial has been the "serious nature and circumstances of the crime" or words to that effect.
11. Plaintiff Marvin McClain is a 67-year old prisoner in the custody of the DOC at Keen Mountain Correctional Center. He has been incarcerated for more than 36 years. He first became eligible for parole in 1987. By letter dated November 4, 2008, the Parole Board denied him parole for the twenty-first time. On most occasions, the sole reason given for the denial has been the "serious nature and circumstances of the crime" or words to that effect. A few of the denials have included an additional reason -- "conviction of a new crime while incarcerated" or words to that effect. The only offense for which McClain has been convicted while incarcerated occurred more than thirty years ago and was for possession of contraband (a homemade knife).
12. Plaintiff Benjamin Perdue is a 69-year old prisoner in the custody ofthe DOC at Augusta Correctional Center. He has been incarcerated for more than 25 years. He first became eligible for parole in 1996. By letter dated April 1, 2009, the Board denied him parole for the tenth time. On each occasion, the sole reason given has been "the serious nature and circumstances of the crime" or words to that effect.
13. Plaintiff Henry Stump is a 48-year-old prisoner in the custody of the DOC at Powhatan Correctional Center. He has been incarcerated for more than 29 years. He first · became eligible for parole in 1991. By letter dated April 23, 2009, the Parole Board denied him parole for the eighteenth time. On most occasions, the sole reason given for the denial has been the "serious nature and circumstances of the crime" or words to that effect. On a few occasions a second reason has been given - conviction of a new crime while incarcerated. In 1991, Stump pled guilty to possession of controlled substances for having a small amount of marijuana in 1989 and some unprescribed pills in 1990. This is Stump's only conviction while incarcerated.
5

14. Plaintiff Barbara Tabor is a 67-year old prisoner in the custody of the DOC at the Virginia Correctional Center for Women in Goochland. She has been incarcerated for more than 28 years. She first became eligible for parole in 1993. By letter dated August 14, 2009, the Parole Board denied her parole for the eleventh time. On each occasion, the sole reason given for the denial has been "the serious nature and circumstances of the crime" or words to that effect.
The Defendants 15. Defendant Helen F. Fahey is the Chair of the Board. Fahey was appointed to the Board, as Chair, by Governor Mark R. Warner in January 2002. She has been acting as Chair of the Board continuously since that time, having been reappointed in January 2006. As Chair, Fahey is a full-time state employee. 16. Defendant Carol Ann Sievers is the Vice-Chair of the Board. Sievers was appointed to the Board by Governor Warner in January 2002 and has been acting as a member of the Board continuously since that time. Sievers has been designated as a full-time state employee in her capacity as Vice Chair of the Board. She is the designated "representative of a crime victims' organization or a victim of crime" under Va. Code § 53.1-134. 17. Defendant Jackie T. Stump is a member of the Board. Stump was appointed to the Board by Governor Warner in December 2005 and has been acting as a member ofthe Board continuously since that time. Stump has been designated as a full-time state employee in his capacity as a member of the Board. 18. Defendant Michael M. Hawes is a member of the Board. Hawes was appointed by Governor Warner in March 2002 and has been acting as a member of the Board continuously since that time. Hawes is a part-time state employee in his capacity as a member of the Board.
6

19. Defendant Rudolph C. McCollum, Jr. is a member of the Board. McCollum was appointed by Governor Timothy M. Kaine in February 2007 and has been acting as a member of the Board continuously since that time. McCollum is a part-time state employee in his capacity as a member of the Board.
CLASS ACTION ALLEGATIONS 20. The Plaintiffs bring this action on behalf of a class of persons currently incarcerated by the DOC for violent offenses committed prior to January 1, 1995, who are or will become eligible for parole, and who have been or are likely to be denied parole exclusively or primarily by reference to the "serious nature or circumstances of the crime" or words to that effect. For purposes ofthis Complaint, the term "violent offenses" is defined to include murder, rape, sodomy, robbery, assault, abduction, use of a weapon, and any other felony that the 'Board considers to be violent. 21. As of the end of September, 2008, 6,377 parole-eligible inmates were incarcerated by DOC for violent offenses. Virginia Department of Corrections, Research, Evaluation and Forecast Unit, Research and Management Services, Parole Eligible Inmates Incarcerated in the Virginia Department ofCorrections as ofSeptember 2008, at 3 (October, 2008). The vast majority of these inmates remain incarcerated and are therefore members of the proposed class. Joinder of them as parties is impractical because the class is so numerous and because all of the members of the proposed class are incarcerated and, upon information and belief, many of them are indigent and will most likely have great difficulty pursuing their constitutional claims individually. 22. Questions of law and fact common to the proposed class include whether the Defendants' practices, policies and procedures for considering parole for those convicted of violent offenses violate the class members' rights to due process oflaw under the Fourteenth
7

Amendment to the United States Constitution, and whether such policies and procedures violate their rights to be free from ex post facto enhancement of their punishments under Article I, § 10, clause 1 of the United States Constitution.
23. The claims of the named Plaintiffs are typical of the claims of the proposed class and the named Plaintiffs will fairly and adequately represent the proposed class. The constitutional violations alleged by the named Plaintiffs stem from the same course of conduct by Defendants -- namely, Defendants' practices, policies and procedures that have had the intent and/or effect of denying fair and meaningful consideration for parole to parole-eligible prisoners convicted of violent offenses. The legal theories under which the named Plaintiffs seek relief are the same as those upon which the class will rely. ~n addition, the harm suffered by the named Plaintiffs is typical of the harm suffered by the proposed class members, to-wit, a significant risk of prolonged incarceration as a result of the Defendants' failure to provide a fair and meaningful consideration for parole conducted pursuant to the requirements of Virginia law.
24. The named Plaintiffs have the requisite personal interest in the outcome of this action in that each has been repeatedly denied parole because of the "serious nature and circumstances of the crime." Each plaintiff shares this interest with the class members and will fairly and adequately protect the interests of the class members.
25. The named Plaintiffs are represented by undersigned counsel. These attorneys have the resources, experience and expertise to diligently prosecute this class action and they have no knowledge of any conflicts among the members of the class or between any of the class members and counsel.
26. A class action is maintainable pursuant to Rule 23(b)(1) and/or Rule 23(b)(2) of the Federal Rules of Civil Procedure because the prosecution of separate actions by individual class members would create a risk of inconsistent or varying adjudications with
8

respect to individual class members that would establish incompatible standards of conduct for Defendants, and Defendants have acted and will act on grounds applicable to all class members so that final declaratory and injunctive relief on behalf of all members is appropriate.
STATEMENT OF THE CLAIMS 27. Following Virginia's abolition of discretionary parole for offenses committed after 1994, the Board has adopted practices, policies and procedures that violate Virginia law and deprive Plaintiffs -- and the approximately 6,377 parole-eligible men and women imprisoned for violent offenses committed before January 1, 1995 -- of fair or meaningful consideration of parole. The Board's actions constitute a de facto abolition of the provisions of Virginia law governing parole, thus depriving Plaintiffs of liberty without due process of law. Moreover, the Board's actions have increased the punishment for Plaintiffs' crimes beyond the expectations and assumptions that the courts, prosecutors and defense counsel had at the time of sentencing and constitute an ex post facto enhancement of Plaintiffs' punishment in violation of the United States Constitution. Parole Requirements for Offenses Committed Prior to 1995 28. For all inmates whose offenses were committed prior to January 1, 1995, and who otherwise meet the statutory eligibility requirements, Virginia law requires that the Parole Board consider a broad range of circumstances in determining whether an inmate is suitable for release on parole. Specifically, Virginia law requires that the Board "shall ... [r]elease on parole" those "found suitable for parole," according to general rules to be adopted by the Board subject to approval ofthe Governor. Va. Code § 53.1-136. Virginia law also requires that the Board "shall review and decide" whether to release a parole-eligible inmate on parole at specific time intervals. Va. Code § 53.1-154. Virginia law further requires that the decision whether to grant parole must be premised on "a thorough investigation ... into the prisoner's
9

history, physical and mental condition and character and his conduct, employment and attitude while in prison," and a determination in each individual case "that his release will not be incompatible with the interests of society or the prisoner." Va. Code § 53.1-155. These requirements apply to all Virginia inmates regardless of the nature of their offenses, i.e., whether or not their offenses were violent.
29. These requirements of Virginia law, which are sometimes referred to as "discretionary parole," are separate from the requirements in Va. Code § 53.1-159, sometimes referred to as "mandatory parole," which generally must be granted six months prior to an inmate's date of final release. As used in this Complaint, unless the context otherwise so indicates, the term "parole" refers to discretionary parole and not mandatory parole.
Parole Practices and Procedures Prior to the Abolition of Parole 30. In 1989, the parole grant rate in Virginia was 42%, i.e., of those considered for parole, 42% were granted parole. Report of the Joint Legislative Audit and Review Commission ("JLARC") on Review of Virginia's Parole Process, Senate Doc. No.4 (July 1991), at 20,22 ("JLARC Report"). From 1990 to early 1993, the parole grant rate averaged over 41 %. Virginia Department of Criminal Justice Services, Criminal Justice Research Center, Crime in the Commonwealth (Dec. 1999) at 55. 31. Prior to the abolition of parole, Virginia judges, prosecutors and defense counsel were well aware of the availability of parole. The length of sentences imposed prior to the abolition ofparole was based upon the universal expectation and assumption that Virginia law afforded a fair and meaningful opportunity for parole and that a prisoner who demonstrated an appropriate level of rehabilitation and suitability for release would not serve the full term or anything approaching the full term of his sentence. In 1993, for example, violent offenders in Virginia (as defined by the federal Violent Crime Control and Law Enforcement Act of 1994)
10

served only 38% of the imposed length of their sentences. U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Trends in State Parole, 1990-2000 (Oct. 2001) at 6.
32. As a result of the universal expectations and assumptions that Virginia law afforded a fair and meaningful opportunity for parole, Plaintiffs and members of the class -- even those who were first time offenders -- were given lengthier sentences than they otherwise would have received to ensure that they would serve an adequate period of time prior to being released on parole.
The Abolition of Parole for Offenses Committed After 1994 33. In 1994, Virginia abolished parole for all inmates who committed offenses on or after January 1,1995. Va. Code § 53.1-165.1. For such inmates, Virginia law now generally requires incarceration for the full length of their sentences, subject to reduction by up to 15% through earned sentence credits, Va. Code § 53.1-202.3, and subject further to being paroled six months prior to their date of final release. Va. Code § 53.1-159. 34. Although the General Assembly considered proposals to abolish parole retroactively, it did not do so because it recognized that to do so would violate the United States and Virginia Constitutions. In September 1994, Attorney General James Gilmore issued an opinion to a member of the Virginia House of Delegates that, because Virginia had established a system of parole, considerations of due process required that parole procedures be fundamentally fair and that existing inmates be considered fairly for parole release. 1994 Report of the Attorney General 88,90, citing Franklin v. Shields, 569 F.2d 800 (4th Cir.) (en banc), cert. denied, 435 U.S. 1003 (1978). In his opinion, Attorney General Gilmore further stated that any regulation that had the effect of abolishing parole for currently incarcerated inmates would violate the Ex Post Facto Clauses of the United States and Virginia Constitutions. He concluded
11

that ''parole may not be abolished retroactively in Virginia, either by statute or by administrative action." Id. at 92-93 (emphasis added).
35. Consistent with Attorney General Gilmore's September 1994 opinion, the Virginia Commission on Sentencing and Parole Reform reported -- "regrettably" -- that it appeared from "case law" that "the benefits and limitations of the existing parole system must ... remain available for those inmates currently serving time in the prison system." Report of the Commission on Sentencing and Parole Reform to the Governor and the General Assembly of Virginia, House Doc. No. 18 (1995) at 10-11.
Board Practices, Policies and Procedures Following the Abolition of Parole 36. Although the existing parole system could not be abolished retroactively
"by statute or by administrative action," beginning in 1995 the Board began to adopt and implement practices, policies and procedures that had the intent and/or effect of abolishing parole retroactively for Plaintiffs and the members of the class.
37. For example, prior to the abolition of parole in 1995, the Board had introduced a set of Parole Guidelines that contained a risk assessment tool to be used and relied upon in making parole determinations. Risk assessment tools are well recognized by corrections experts to be useful in assessing suitability of release and are used by parole authorities in the vast majority ofjurisdictions in the United States. Indeed, Virginia law currently requires the Virginia Criminal Sentencing Commission to use a risk assessment instrument to inform its sentencing guidelines for offenses committed after 1994. Va. Code § 17.1-803(5). Nevertheless, after the abolition of parole, the Board discontinued use of the risk assessment tool contained in the Parole Guidelines. See Letter from Helen F. Fahey to Keith W. DeBlasio, December 12, 2005, at 1.
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38. Similarly, Virginia law requires the Board to establish general rules governing the granting of parole. Va. Code § 53.1-136.1. Such rules were previously published in the Virginia Administrative Code. 14 Va. Reg. No. 17 at 2457 (Apr. 22, 1998). In 1998, the Board repealed those rules and has never replaced them, in violation of Virginia law. Instead of replacing its rules, the Board has relied on a "Policy Manual." This Manual states that the Board's parole decisions are "guided" by 14 factors, only one of which relates to the nature of the offense for which the inmate was incarcerated. The other factors include considerations relating to rehabilitation and the level of risk to society and the prisoner ifthe prisoner were to be released on parole, as required by Virginia law. Va. Code § 53.1-155.
39. Despite the purported "guidance" of the 14 factors in its "Policy Manual," the Board has relied primarily, if not exclusively, on the "serious nature and circumstances of the crime" when making parole determinations with regard to inmates convicted of violent offenses. The Board has not given fair or meaningful consideration to the other factors in its Policy Manual when making such determinations. The Board's reliance on the "serious nature and circumstances of the crime" has resulted in virtually automatic and repeated denials of parole for inmates convicted of violent offenses, even when the other factors in the Manual and the statute would favor release.
40. The Board's disregard of its obligation to provide fair and meaningful consideration for parole, and its de/acto abolition of the provisions of Virginia law governing parole for Plaintiffs and the members of the class, are further evidenced by its failure to adopt and maintain policies and procedures for obtaining information relating to all the statutory factors applicable to parole decisions and therefore likely to produce informed predictions about suitability of release on parole.
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41. In the past, the Board, like the paroling authority in most other states, conducted face-to-face personal interviews of inmates to inform its decisions. The Board has abandoned this practice. It relies instead on pro forma interviews by a small number of parole examiners, in some cases solely by video, which often last for only a few minutes, and frequently focus primarily on the nature of the offense for which the inmate has been incarcerated. These interviews often do not seek or obtain any information relevant to many of the other factors identified in the Board's Policy Manual or required by Virginia law.
42. The Board does not regularly meet with its parole examiners to discuss their reports. On information and belief, the parole examiners instead submit their reports to an electronic data base which the members of the Board may then access electronically. The reports of the parole examiners do not carry any significant weight in the decisions of the Board concerning inmates convicted of violent offenses. Similarly, the Board does not solicit information from prison wardens, guards, counselors, psychologists, and other DOC employees who see and work with Plaintiffs and members of the class on a day-to-day basis and could provide probative information concerning their suitability for release. In fact, the Board has affirmatively discouraged the provision of such information.
43. The Board no longer regularly meets at its offices in Richmond and Board members no longer regularly exchange views about candidates for parole. Instead, the Board's regular practice is to circulate an electronic file to each Board member on a seriatim basis so that members can vote electronically to grant or deny parole.
44. While Virginia law generally requires that inmates eligible for parole be considered annually, the Board may elect to defer subsequent consideration of parole by up to three years for inmates with at least ten years remaining on their sentence. Va. Code § 53.1-154. The Board has made use of such three-year deferrals in a completely arbitrary manner. For
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example, it has issued to inmates over the course of their incarceration alternating three-year deferrals and one-year denials with no apparent basis for the distinctions.
45. In 2002, the Board changed its rules to reduce the frequency with which inmates' families and representatives may schedule meetings with a member of the Board to no more frequently than once every two years. Virginia Parole Board Administrative Procedure 1.112. In contrast, the Board diligently endeavors to contact the victim prior to any decision to grant parole, and to permit the victim to present oral or written testimony to the Board. Va. Code § 53.1-155.B. Likewise, the Board's regular practice is to schedule meetings with inmates' family members with only one offive Board members, whereas no such limitation applies to meetings with the families and representatives of victims. Id. at 2.
46. The procedures established by the Board following the abolition of parole have enabled the Board to make decisions about whether to grant or deny parole exclusively or primarily on the basis of the nature ofthe offense with no fair or meaningful consideration of the other factors relating to suitability for release required to be considered under Virginia law. In addition, the Board's procedures have rendered its decision-making process opaque and have made it difficult if not impossible for anyone to hold the Board accountable for its decisions denying parole.
The Results of the Board's Actions Following the Abolition of Parole 47. By fiscal year 1996, the parole grant rate in Virginia had dropped to 18% for all offenders, i.e., including non-violent offenders. By fiscal year 2000, this figure had dropped to 8%, and by fiscal year 2008 it had dropped to less than 5%. Letter from Wayne M. Turnage to Delegate Kenneth C. Alexander, Jan. 23, 2009 (Chart) ("Turnage Letter Chart"). For inmates convicted of violent offenses, parole has been rendered even less likely by the Board's actions since the abolition of parole in 1994. From fiscal year 2002 through fiscal year 2008, the
15

parole grant rate for inmates convicted of violent offenses ranged from no higher than 3.7% to as low as 2.1%.
48. Of the small number of inmates granted parole by the Board after 1994, many had already served more than 85% of the time before their mandatory parole release date. For example, in June 2008, six of the eight granted parole (which was only 5% of 161 inmates considered for discretionary parole in 2008) were already within one year of their mandatory release date. See www.vadoc.state.va.us/resources/vpb/decisions/ default.shtm.
49. Defendants have repeatedly defended the Board's lowparole grant rate by asserting that most parole-eligible inmates have committed violent offenses, without referring to the other factors set forth in Va. Code § 53.1-155 and in the Board's own Policy Manual.
50. In 2009, a representative of the Governor of Virginia (who by statute appoints the members of the Parole Board and approves the Board's rules governing the granting of parole and eligibility requirements, Va. Code §§ 53.1-134,53.1-136(1)) advised members of the General Assembly that "the current low parole grant rate is a consequence of the high proportion of violent offenders" under review by the Board. Turnage Letter at 2. In fact, as of September 2008, the percentage of inmates eligible for parole who had committed violent offenses was 77.5%. See Virginia Department ofCorrect~ons, Research, Evaluation and Forecast Unit, Research and Management Services, Parole Eligible Inmates Incarcerated in the Virginia Department a/Corrections as a/September 2008, October 2008, at 3. By comparison, in 1994, when the parole grant rate was over 40%, the percentage of DOC inmates convicted of violent offenses was 69.1 %, thus belying any significant difference in the proportion of violent offenders under review after the abolition of parole.
51 . For inmates who have committed violent offenses, the Board has replaced fair and meaningful consideration for parole with repeated denials based primarily if not
16

exclusively on the violent nature of their offenses, regardless of the other factors required to be considered by Virginia law.
52. In fiscal years 2006 and 2007, the Board gave only a single reason for approximately 45% of all of its denials of parole -- the "serious nature and circumstances of crime" or words to that effect. See Letter from Helen F. Fahey to The Honorable Linda T. Puller, Feb. 7,2008. In each of these instances, the Board cited no facts specific to the circumstances of the individual inmates and referred to no other factors required to be considered by Virginia law. On infonnation and belief, virtually all of these denials involved inmates convicted of violent offenses.
53. The Plaintiffs have received the "serious nature and circumstances of crime" "explanation" for their denials of parole repeatedly year in and year out -- even as long as 30 years or more after the time of the offense -- even when the crime was a first time offense committed at a very young age -- even in the face of undisputed evidence of model conduct during decades of incarceration -- and even when detailed and reliable release plans make the likelihood of recidivism extremely unlikely.
54. What is more, Plaintiffs and the members of the class have been repeatedly denied parole despite their advanced age. As a general rule, the older an inmate is, the smaller the risk that the inmate will commit another offense if released on parole. Virginia Criminal Sentencing Commission, Report on Parole-Eligible and Geriatric Inmates in State Correctional Facilities (Sept. 1,2009) ("VCSC 2009 Report") at 22. As of the end of 2008, 1,357 DOC inmates eligible for parole were 50 years old or older, and 379 of such inmates were 60 years old or older. Id. at 12. These numbers are expected to grow in future years. Nevertheless, the Defendants repeatedly have denied parole to such aging and elderly inmates, often with no explanation other than "serious nature and circumstances of crime" and even
17

though in every case the crime was committed prior to 1995 (at least 15 years ago and in many cases much earlier). In November 2009, for example, 145 of373 inmates denied parole were 50 years old or older and 38 such inmates were 60 years old or older. See www.vadoc.state.va.us/resources/vpb/decisions/default.shtm.
55. The Board's reliance on the "serious nature and circumstances ofthe crime" as the primary or sole reason to deny parole, without regard to other factors relating to suitability for release, is also reflected in the Board's geriatric release policy. Virginia law requires the Board to consider petitions for geriatric release from prisoners aged 60 or older who have served at least ten years, and from prisoners aged 65 or older who have served at least five years. Va. Code § 53.1-40.01. This law was amended in 2001 specifically to include inmates whose offenses were committed prior to the abolition of parole. Such inmates comprise approximately 80% of those who currently qualify to file such petitions. VCSC 2009 Report at 23. Many of these inmates are confined to wheelchairs, diagnosed with diabetes or other crippling diseases, or living in assisted living facilities.
56. The Board's written policy is to grant a geriatric release only for "compelling reasons." Virginia Parole Board Administrative Procedure 1.226. The Board has granted only seven geriatric release petitions since the geriatric release statute took effect in 1995. Virginia Criminal Sentencing Commission 2008 Annual Report at 91. The Board has stated that its low grant rate for such petitions is ''mainly because of the nature of the offenses of those that applied." Geriatric Offenders Report at 9. For 95% of the offenders denied geriatric release, the Board has cited the serious nature of the original offense. Virginia Criminal Sentencing Commission 2008 Annual Report at 91.
57. Defendants' practices and policies following the abolition of parole have substantially extended the median time served by inmates eligible for parole. For example,
18

during fiscal years 1988 through 1992, the median sentence for inmates convicted of first degree murder without any prior violent offense was 12.4 years. Virginia Criminal Sentencing Commission 2005 Annual Report at 47. Plaintiffs and the members of the class convicted of murder without any prior violent offense have all already served substantially more than 12.4 years.
58. For offenses committed after 1994, Virginia has established sentencing guidelines pursuant to Virginia Code §§ 17.1-803, 17.1-805. One of the purposes of the sentencing guidelines has been to require those convicted of violent offenses to serve substantially longer prison terms than they would have served prior to the abolition of parole. Under these guidelines, the median sentence for those convicted of murder without any prior violent offense has been increased to 31.9 years. Virginia Criminal Sentencing Commission 2005 Annual Report at 47.
59. On information and belief, Defendants have relied at least in part on these sentencing guidelines in making determinations whether to grant or deny parole to Plaintiffs and the members of the class, even though the guidelines are supposed to apply only to offenses committed after 1994. Moreover, some members of the class have been imprisoned even longer than the high end ofthe sentences recommended under the guidelines. For example, by the end of 2008, more than 700 inmates still eligible for parole had already served longer than the high end of the sentences recommended under the guidelines for the same or similar offenses. VCSC 2009 Report at 17.
Consideration of Plaintiffs for Parole 60. Each of the Plaintiffs has repeatedly been denied parole solely or primarily by reference to the "serious nature and circumstances of the crime" or words to that effect. All the Plaintiffs have demonstrated through their conduct, employment and attitude while in prison
19

that they have been rehabilitated and would pose no meaningful risk to public safety if they were to be released on parole. Each of the Plaintiffs has an outstanding institutional record, marked by positive evaluations, one or more educational degrees, vocational certifications, positive work experience, and satisfactory completion of reentry and other programs made available by DOC. Each of the Plaintiffs has a solid release plan, including a place to live and reasonable prospects for employment.
61. Plaintiff Sharon Burnette committed her offense in 1981 at the age of 21. She pled guilty to murder and use of a firearm in connection with the killing of a gas station attendant during a robbery. She was sentenced to life plus one year. Her only prior conviction was for a misdemeanor for shoplifting. At the time of her sentencing, her lawyer told her that if she stayed out of trouble and made good progress while in prison, she would probably be paroled by the time she was 34 or 35 years old.
a. Burnette is now 49 years old and has served more than 28 years, which is well in excess of the median for first degree murder served prior to the abolition of parole by inmates with no prior violent offenses.
b. Burnette has had only one institutional infraction in 28 years -- a 1982 charge for failure to stand for count when she was sleeping.
c. Burnette's employers and counselors have confirmed that she is "able to cope with good and bad situations; gets along with various personalities; is strong, kind, intelligent, a good worker; highly proficient in attitude and work habits; [and displays] exceptional institutional conduct."
d. Notwithstanding her record, Burnette has been denied parole twelve times, with two of the denials occurring after three year deferrals of consideration for
20

parole. On each occasion, the sole reason given for the denial has been the "serious nature and circumstances of the crime" or words to that effect.
62. Plaintiff Pamela K. Burroughs committed her offense in 1985 at age 28. She had no prior criminal conviction, other than for trespassing after returning to a trailer to collect her belongings following an eviction. She pled guilty to murder of a robbery victim, who was killed by her two co-defendants during the course of the robbery. At the time of her offense, she was addicted to and a heavy user of methamphetamines. She was sentenced to life for murder, 30 years for robbery (with sentence suspended), and five years (pursuant to a separate indictment) for distribution of PCP (to run concurrently). When sentencing her, the Frederick County Circuit Court judge told her that with a good prison record he expected that she would be granted parole after her first or second review.
a. Burroughs is now 53 years old and has served more than 23 years, which is well in excess of the median for first degree murder served prior to the abolition of parole by inmates who had not committed any prior violent offenses.
b. Burroughs has satisfactorily completed DOC's substance abuse course, is neither addicted to nor uses alcohol or drugs, and has repeatedly been tested as drugfree.
c. Burroughs has had only one institutional infraction, which was for sleeping through count more than fourteen years ago.
d. Burroughs has completed her GED and has successfully completed numerous courses offered through J. Sergeant Reynolds Community College. She has also successfully completed many vocational programs while in prison, leading to certifications as Horticulture-Specialty Grower, Sales Person-Horticulture, Floral Designer, Data Entry Clerk and Word Processor Operator.
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e. Burroughs' record is replete with commendations for her trustworthiness and diligence in the prison community. As early as 2002, a counselor attended her annual interview with the parole examiner, recommended a grant of parole and advised the examiner that there was nothing to be gained from her continued incarceration. In 2009, her Case Management Counselor, citing her demonstrated dedication to self-improvement and self enhancement, declared his "support [for] Ms. Burroughs in her efforts to obtain her release."
f. Notwithstanding her record, Burroughs has been denied parole seven times, with two of the denials occurring after three year deferrals of consideration for parole. Except as noted in paragraph 5 of this Complaint, on each occasion, the sole reason given for the denial has been the "serious nature and circumstances of the crime" or words to that effect.
63. Plaintiff Frank Carter, Jr. committed his offenses in 1976 at age 26. He shot and killed his former girlfriend and her boyfriend after a party at which all had been drinking heavily. He received a sentence of 80 years. His only prior criminal record consisted of a number of misdemeanors and a juvenile offense for which he spent a year in a juvenile facility at age 12. He had no prior felony convictions.
a. Carter is now 58 years old and has served 32 years, which is well in excess of the median for first degree murder served prior to the abolition of parole by inmates who had not committed any prior violent offenses.
b. Carter has had no institutional infractions since 1987 when he was charged with consensual conduct with his wife during a visit.
c. Carter has a long and accomplished employment history while in pnson. Since July 2003, he has worked at the auto starter rebuilding factory at Coffeewood Correctional Center. In a 2008 review, the Plant Manager praised Carter's work: "He is highly
22

skilled ... (and] maintains a strong work ethic. ...If a conflict or production problem arises, he attempts to resolve it quickly using tact and effective communication." During the early years of his incarceration, he did farm work for which he was allowed outside the prison gate unescorted. He also participated in the Community Involvement Group (CIG) where he worked outside at various shelters in Richmond.
d. Notwithstanding his record, Carter has been denied parole twentythree times. Except as noted in paragraph 6 of this Complaint, on each occasion the sole reason given for the denial has been "serious nature and circumstances of the crime" or words to that effect.
64. Plaintiff Edward Conquest committed his offenses in 1975 at age 19. He was convicted of first degree murder for the killing of the driver of a dry cleaners van in the course of a robbery. He was sentenced to two life terms, one for the killing and one for the robbery. He had no prior juvenile or adult criminal record, and had never previously been arrested.
a. Conquest is now 54 years old and has served more than 34 years, which is well in excess of the median for first degree murder served prior to the abolition of parole by inmates with no prior violent offenses.
b. Conquest has had no institutional infraction since 1989, when he was cited for disobeying a direct order.
c. Conquest's most recent available annual review form states that he "continues to maintain an overall exemplary adjustment."
d. While incarcerated, Conquest has received his GED certification as well as small business management and associate degrees from a community college. In
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addition, prior to suspension ofthe Pell grant program, he completed all but 16 credit hours required for a bachelor's degree.
e. While in prison Conquest has worked in recreational programs, a furniture factory, and as a teacher's aide and has received "exceptional" and "exemplary" employment reviews. As early as 1995, his supervisor stated that Conquest "would be a good candidate for future parole consideration." Other DOC officers have told him that they have recommended him for parole, and have expressed surprise when learning of his denials.
f. Notwithstanding his record, Conquest has been denied parole twenty-two times. On each occasion, the sole reason given for the denial has been the "serious nature and circumstances of the crime" or words to that effect.
65. Plaintiff Donald W. Hoffman committed his offense in 1978 at age 20. He pled guilty to first degree murder following the commission of rape by a co-defendant and received a life sentence. He was not convicted of the rape and recent DNA testing has eliminated him as a participant in the rape. His co-defendant was convicted of the rape, received a lesser sentence and was released upon completion of his sentence. Hoffman's only prior criminal record consisted of a simple assault conviction while a juvenile and an assault charge at age 18 that was dismissed upon an accord and satisfaction.
a. During his 31 years of incarceration, Hoffman has been charged with only one disciplinary infraction. That occurred in 2002 when he was charged with consensual conduct with his wife during a visit.
b. Hoffman is now 52 years old and has served more than 31 years. c. Hoffman has consistently received outstanding scores on his annual review forms and on his job performance reviews.
24

d. While incarcerated, Hoffman has successfully completed many educational and self-improvement programs and courses, including an Associate in Applied Science Degree from J. Sargeant Reynolds Community College, numerous computer courses, sex offender courses and The Breaking Barriers Program.
e. As early as 1991, a DOC employee recommended Hoffman for parole. The former Buildings and Grounds Superintendent for the Department of Correctional Enterprises has stated that "I don't know of anyone who deserves a second chance more than Mr. Hoffman."
f. Notwithstanding his record, Hoffman has been denied parole fourteen times, with three of the denials occurring after two year deferrals, and one of the denials after a three year deferral, of consideration for parole. On each occasion, the sole reason given for the denial has been the "serious nature and circumstances of the crime" or words to that effect.
66. Plaintiff Monty King committed his offenses in 1986 at age 19. He had no prior juvenile or adult record or arrest. He pled guilty and was sentenced to life for felony murder, and seven years for robbery, based on evidence that, while under the influence of alcohol and PCP, he beat up an elderly woman while stealing her car in a parking garage. He used no weapons, but she later died from the beating. One week later, plaintiff King unsuccessfully attempted a similar car robbery (also while under the influence of drugs). He pled guilty to that offense, and received an additional sentence of five years for attempted robbery.
a. King is now 43 years old and has served more than 23 years, which is well in excess of the median for first degree murder served prior to the abolition of parole by inmates with no record of prior violent offenses.
25

b. King has satisfactorily completed DOC's substance abuse course and is neither addicted to nor uses alcohol or drugs, as confirmed by repeated DOC-administered testing.
c. King has had no institutional infractions of any kind since 1994, when he was charged with sleeping through count.
d. King has an outstanding institutional and employment record while m pnson. In addition, while in prison he has completed a two year Associates in General Studies program through Paul D. Camp Community College.
e. King has located and reunited with his birth mother, who was forced to give him up for adoption when he was seven years old and who has committed to housing him and employing him in her family business.
f. Notwithstanding his record, King has been denied parole seven times, with two of the denials occurring after three year deferrals of consideration for parole. On each occasion, the sole reason given for the denial has been the "serious nature and circumstances of the crime" or words to that effect.
67. Plaintiff Larry Macon committed his two offenses in 1976 at age 19. He was convicted of robbery for taking a pocketbook from a woman on the street while pretending to carry a gun, and for a subsequent murder of the owner of stereo equipment who had returned to his home during the course of Macon's effort to steal the equipment. He was sentenced to life for the murder and nine years for the earlier robbery. Aside from three minor offenses as a juvenile and a gambling offense as an adult, none of which involved violence, Macon had no prior adult or juvenile record.
26

a. Macon is now 53 years old and has served more than 33 years, which is well in excess of the median for first degree murder served prior to the abolition of parole by inmates with no record of prior violent offenses.
b. Macon has had only a few minor institutional infractions in 33 years, the last in 2006 for telling a DOC employee he was attracted to her.
c. While incarcerated, Macon has received his GED certification and he successfully completed numerous college classes before suspension of the Pell grant program. He has also completed courses in upholstery, brick masonry, printing, plumbing, and furniture repair, and has been fully employed first as a baker and now as a painter.
d. Macon's counselors have told him that they have supported him for parole. On information and belief, this view is shared by every other DOC employee in his building who knows him.
e. Notwithstanding his record, Macon has been denied parole eighteen times, with one of the denials occurring after a two year deferral of consideration for parole. On each occasion, the sole reason given for the denial has been the "serious nature and circumstances of the crime" or words to that effect.
68. Plaintiff Marvin McClain pled guilty to murder and robbery in 1973 at age 29. The victim was a storekeeper who was shot and killed by a co-defendant during the course of the robbery of a convenience store. His only prior record consists of two juvenile offenses (breaking and entering and receiving stolen goods).
a. McClain is now 67 years old and has served more than 36 years, which is well in excess of the median for first degree murder served prior to the abolition of parole by inmates who had not committed any prior violent offenses.
27

b. During his imprisonment, McClain has incurred only six minor disciplinary infractions.
c. McClain earned his GED during his early years of imprisonment and has since served as a charter member in a number of programs, including an elderly and youth program, anger management, breaking barriers and drug and alcohol programming.
d. ly1cClain has acquired skills in computer programming, brick masonry, drafting, plumbing, offset printing, auto mechanics and water treatment. He is an accomplished jewelry craftsperson and, throughout his years at Brunswick, served as a mentor to younger prisoners and as a teacher ofjewelry-making.
e. During the mid-1980s, McClain was allowed outside for unsupervised duties at James River and Powhatan Correctional Centers. While at Augusta Correctional Center, he worked in the institutional administrative offices around staff workers on a daily basis.
f. McClain's former counselors at Augusta and Deerfield have all told him he should be released, and as early as 1990 one of them recommended his release.
g. Notwithstanding this record, McClain has been denied parole twenty-one times. Except as noted in paragraph 11 of this Complaint, on each occasion the sole reason given for the denial has been the "serious nature and circumstances of the crime" or words to that effect.
69. Plaintiff Benjamin Perdue, Jr. committed his offenses in 1983 at age 42. He pled guilty to the malicious wounding of his former wife and the murder of her parents (and associated firearms violations) committed during the course of a contested divorce proceeding and while Perdue was intoxicated. He was sentenced to two life terms plus 21 years to run concurrently. He had no prior criminal convictions.
28

a. Perdue is now 69 years old and has served more than 25 years, which is well in excess of the median for first degree murder served prior to the abolition of parole by inmates with no record of prior violent offenses.
b. Perdue was a high school graduate at the time of his convictions and has completed 42 college credits while incarcerated. He has completed multiple and extensive programming in substance abuse and anger management and has been alcohol-free for 25 years.
c. Perdue has never had an institutional infraction and has been commended on two occasions for exemplary action in reporting possible security breaches to correctional officers.
d. Perdue started the "Programs Assisting Youth" program at Bland Correctional Center and for ten years spoke to teens about his alcoholism, his regrets, and the hardships of imprisonment. He was commended by Warden Pattie Huffman for his initiative and commitment to the program. Perdue has facilitated the Breaking Barriers program and has been described as an "excellent worker" who "exceeds any work assigned."
e. The psychiatrist who found Perdue competent to stand trial has written on his behalf to the Parole Board several times and on one occasion told the Board that, if prison is about rehabilitation, Perdue had been rehabilitated.
f. Notwithstanding this record, Perdue has been denied parole ten times. On each occasion, the sole reason given for the denial has been the "serious nature and circumstances of the crime" or words to that effect.
70. Plaintiff Henry Stump committed his offense in 1980 at age 19. He pled guilty to murder for the killing of a bootlegger from whom he and a co-defendant were purchasing liquor. He was sentenced to a term of 93 years. (His co-defendant received a lesser
29

sentence and was released on parole in 1990.) His only prior record consisted of a conviction for

auto theft while a juvenile and charges of public intoxication.

a. Stump is now 48 years old and has served more than 29 years,

which is well in excess of the median for first degree murder served prior to the abolition of

parole by inmates with no prior violent offenses.

b. Since 1991, Stump has had only two disciplinary infractions - one

for possession of dice in 1991 and one for possession of an extra pair of reading glasses in 2008.

c. Stump has consistently received outstanding scores on his annual

review forms and on his job performance reviews.

d. While incarcerated, Stump has successfully completed a OED

program as well as a large number of educational and self-improvement courses offered by

DOC.

e. On Stump's 2007 annual review form, his counselor wrote that he

"has taken just about every program offered for self improvement since entering corrections."

f.

Notwithstanding his record, Stump has been denied parole

eighteen times, with one of the denials occurring after a two year deferral of consideration for

parole. Except as noted in paragraph 13 of this Complaint, on each occasion the sole reason

given for the denial has been the "serious nature and circumstances of the crime" or words to that

effect.

71. Plaintiff Barbara Tabor was convicted of felony murder in 1981 in

connection with a robbery planned for a time the victim was not expected to be at home. Tabor

was not present during the robbery, in which her co-defendant shot and killed the homeowner.

She was sentenced to a term oflife plus twenty one years. Her only prior criminal record was a

30

conviction for transportation of stolen property for which she was sentenced to three years of probation.
a. Tabor is now 67 years old and has served more than 28 years, which is well in excess of the median for first degree murder served prior to the abolition of parole by inmates with no prior violent offenses.
b. During her incarceration, Tabor has been charged with just three minor disciplinary infractions, and only one (visiting without permission with an inmate) during the last ten years.
c. Tabor has completed her GED and other courses while in prison and has a successful prison employment record, first in the laundry (as the only mechanic) and currently in the enterprise microfilm shop, where she has been entrusted with microfilming confidential medical and criminal records for the entire Virginia DOC prison system.
d. Tabor's prison employers praise her work and her record includes a statement from her counselor that she is "a good parole risk."
e. Notwithstanding her record, Tabor has been denied parole eleven times, with two of the denials occurring after three year deferrals of consideration for parole. On each occasion, the sole reason given for the denial has been "serious nature and circumstances of the crime."
The Effects of the Board's Practices, Policies and Procedures 72. Defendants' practices, policies and procedures have failed to produce informed predictions about Plaintiffs' suitability for release, have deprived Plaintiffs of information about what they need to do to improve their chances for parole, have denied Plaintiffs fair and meaningful opportunity for parole, and have created a significant risk of prolonging Plaintiffs' incarceration for far longer than contemplated by Virginia law and far
31

longer than the courts, prosecutors and defense attorneys expected or assumed when the sentences were handed down. For Plaintiffs and the members of the class, this has amounted to a de/acto abolition of the provisions of Virginia law governing parole.
73. The Board's unlawful policies and procedures have imposed, and unless enjoined will continue to impose, irreparable injuries upon Plaintiffs, the m"embers of the proposed class, and their family members. Remedying these unlawful policies and procedures would serve the public interest by ensuring (a) fair and meaningful consideration for parole in accordance with the requirements of Virginia law and the United States Constitution, (b) the availability to Virginia and other states of the productive services of men and women suitable for release on parole, (c) realization of the tax revenues associated with the services of such men and women, (d) the family support that such men and women would be in a position to provide, and (e) the savings of potentially hundreds of millions of dollars in operating and prison construction costs associated with the unwarranted continued incarceration of Plaintiffs and the members of the class.
COUNT I
<Violation of Due Process) 74. Plaintiffs incorporate herein by reference the allegations set forth in paragraphs 1 - 73 above. 75. As a result of the foregoing policies and procedures, the Board's consideration of parole with respect to Plaintiffs and members of the class has been and will continue to be arbitrary and capricious. The Board's conduct constitutes a failure (a) to make informed decisions about suitability for release, (b) to exercise discretion, and (c) to give fair and meaningful consideration of parole. The Board's conduct violates the rights of Plaintiffs and the members ofthe class to due process oflaw guaranteed by the Fourteenth Amendment to the United States Constitution.
32

COUNT II (Ex Post Facto Violation) 76. Plaintiffs incorporate herein by reference the allegations set forth in paragraphs 1 - 75 above. 77. The conduct of the Board constitutes an ex postfacto enhancement of the punishments imposed upon the named Plaintiffs and members of the class at their respective sentencings in violation of Article I, § 10, cl. 1 of the United States Constitution.
Prayer for Relief WHEREFORE, Plaintiffs ask this Court to: A. certify a class as defined in this Complaint; B. issue an order adjudging and declaring that the policies, practices and procedures of the Parole Board following the abolition of parole for offenses committed after 1994 deprive Plaintiffs and the members of the class of fair and meaningful consideration for parole as required by the Due Process Clause of the Fourteenth Amendment to the United States Consti tution; C. issue an order adjudging and declaring that such policies, practices and procedures violate the rights of Plaintiffs and the members of the class guaranteed under Article I, § 10, cl. 1 of the United States Constitution; D. enjoin and restrain the Defendants and all those in concert or participation with them from conducting parole reviews without according Plaintiffs and members of the proposed class fair and meaningful consideration of parole, including consideration of each of the factors required by Virginia law and reflected in the Board's own Policy Manual; E. order the Defendants to make immediate determinations concerning parole for Plaintiffs and the members of the class in accordance with the mandates of this Court;
33

F. order the Defendants to promulgate, after reasonable notice and

opportunity for public comment, rules governing parole reviews and determinations that comport

with the mandates of this Court and publish such rules in the Virginia Administrative Code;

G. award Plaintiffs the costs and disbursements of this action;

H. award Plaintiffs reasonable attorney's fees; and

1.

grant Plaintiffs such further and other relief as to this Court may seem just

and proper.

Dated: February 3, 2010

SHARON BURNETTE, PAMELA K. BURROUGHS, FRANK CARTER, JR., EDWARD CONQUEST, DONALD W. HOFFMAN, MONTY KING, LARRY MACON, MARVIN MCCLAIN, BENJAMIN PERDUE, JR., HENRY STUMP and BARBARA TABOR, suing on behalf of themselves and all others similarly situated
By }lfq,fJ .?/d!f;

Stephen A. Northup, VSB No. 16547 Robert A. Angle, VSB No. 37691 TROUTMAN SANDERS LLP Post Office Box 1122 Richmond, Virginia 23218-1122 (804) 697-1240 (804) 698-5120 (fax)

Alex R. Gulotta, VSB No.3 7097 Abigail Turner, VSB No. 74437 Gail Starling Marshall, VSB No. 7737 LEGAL AID JUSTICE CENTER 100 Preston Avenue Charlottesville, Virginia 22903 (434) 977-0553

William R. Richardson, Jr., VSB No. 16139 2674 Marcey Road Arlington, Virginia 22207 (703) 447-8328

Counsel for Plaintiffs

34

 
 Case 3:10-cv-00070-REP Document 5 Filed 03/15/10 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
RICHMOND DIVISION

SHARON BURNETTE, et aI.,

)

)

Plaintiffs,

)

)

v.

)

)

HELEN F. FAHEY, in her capacity as Chair )

of the Virginia Parole Board, et aI.,

)

)

Defendants.

)

Civil Action No. 3:lOcv70

PLAINTIFFS' MEMORANDUM IN OPPOSITION TO MOTION TO DISMISS Defendants' Motion to Dismiss ignores the key factual allegations in Plaintiffs' Complaint and mischaracterizes many others. In addition, Defendants' Motion is premised upon a mistakenly narrow analysis of the constitutional provisions on which Plaintiffs rely for their claims. Indeed, the Attorney General's supporting memorandum is flatly inconsistent with the legal opinion of his predecessor cited in the Complaint, which the memorandum does not even address. As Attorney General Gilmore opined, "[0]nce a state chooses to establish a system of parole, ... that state creates a liberty interest protected by due process considerations, and the procedures used in that system must be fundamentally fair." Va. Attorney General, 1994 Report of the Attorney General. 88, 90 (emphasis added) (citing Franklin v. Shields, 569 F.2d 800,801 (4th Cir. 1978) (en banc), cert. denied, 435 U.S. 1003 (1978». Furthermore, he cautioned, "parole may not be abolished retroactively in Virginia, either by statute or by administrative action." 1994 Report of the Attorney General. at 93.

Case 3:10-cv-00070-REP Document 5 Filed 03/15/10 Page 2 of 18
This Memorandum demonstrates that the detailed factual allegations in the Complaint state claims for relief under both the Due Process and the Ex Post Facto Clauses of the United States Constitution.
Standard of Review on a Motion to Dismiss As the Court is well aware, when considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court must assume that the plaintiffs' factual allegations are true, and it must view those allegations, and all reasonable inferences from them, in their favor. Ambrose v. Blue Cross & Blue Shield a/Virginia, 891 F. Supp. 1153, 1157 (E.D. Va. 1995). Furthermore, under Ashcroft v. Iqbal, Plaintiffs must have alleged facts in the Complaint which "'state a claim to relief that is plausible on its face'" to overcome a motion to dismiss. Id. 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,570 (2008)). Here, Plaintiffs' Complaint easily meets these standards, and Defendants have not argued that Plaintiffs' allegations are implausible or lacking in particularity. Rather, Defendants simply argue that Plaintiffs cannot, as a matter oflaw, state a claim for relief under the Due Process Clause and the Ex Post Facto Clause, regardless of the facts alleged. As demonstrated below, Defendants' arguments are unfounded.
ARGUMENT I. The Complaint States a Claim for Relief Under the Due Process Clause
A. Due Process Requirements Under Virginia's Parole Statutes The fundamental flaw in Defendants' challenge to the due process claim is
revealed in a single sentence on page 5 of their Memorandum: "Since the Plaintiffs have been furnished with statements of the reason(s) for the denial of parole, and this is all the process
2

Case 3:10-cv-00070-REP Document 5 Filed 03/15/10 Page 3 of 18
constitutionally required of the Virginia Parole Board, Plaintiffs have received the process to which they are entitled...." In other words, according to the Defendants, the Due Process Clause does not require either fair or meaningful consideration for parole before deciding whether to deny an inmate his or her liberty. It requires only that the inmate be furnished with some reason -- any reason -- for the denial of parole. Thus, according to Defendants, the Board can recite the same words about the "serious nature of the offense," on the same form letter, year after year after year, without actually considering any of the factors governing suitability for release established by Virginia law, and comply with the Due Process Clause.
Plainly, the Defendants' position -- which eviscerates the Due Process Clause and empties "due process" of any meaning -- is contrary to the law. As the Supreme Court has made clear time and again, the Due Process Clause guarantees more than a "meaningless ritual." Evitts v. Lucey, 469 U.S. 387,394 (1985). As recently as last year, the Supreme Court reaffirmed not only that due process requires "fundamental fairness in [the] operation" of a correctional system, but also that inmates are entitled "to procedures essential to the realization of the parent right" of fundamental fairness. District Attorney's Office v. Osborne, 129 S. Ct. 2308,2319 (2009). Indeed, even in the face of accusations of treasonous behavior during war, the Court has insisted on meaningful due process rights, because "an unchecked system of detention carries the potential to become a means of oppression and abuse." Hamdi v. Rumsfeld, 542 U.S. 507, 530 (2004), rev'g 316 F.3d 450 (4th Cir. 2003). And, as Justice Powell recognized more than thirty years ago, "Liberty from bodily restraint always has been recognized as the core of the liberty protected by the Due Process Clause from arbitrary governmental action." Greenholtz v. Inmates ofthe Nebraska Penal and Correctional Complex, 442 U.S. 1, 18 (1979) (concurring in part and dissenting in part). Thus, the Due Process Clause prohibits the arbitrary administration of parole
3

Case 3:10-cv-00070-REP Document 5 Filed 03/15/10 Page 4 of 18
that Defendants attempt to justify and, instead, requires a fundamental fairness that the Parole Board is not providing.
Consistent with these principles, this Court and the Fourth Circuit have repeatedly recognized that Virginia law governing parole (like the Nebraska law addressed in Greenholtz) creates a liberty interest protected by due process. In Franklin, Judge Butzner construed the relevant provisions of the applicable Virginia law (which Defendants concede are essentially unchanged today) to mean "that a prisoner will be released ifhe meets th[e] exacting standard [for release] as interpreted by the Board in its guidelines...." Franklin, 569 F.2d at 797. Accordingly, the Due Process Clause requires that the procedures used in the system be fundamentally fair and not arbitrary. See also Hill v. Jackson, 64 F.3d 163, 170 (4th Cir. 1995); Gaston v. Taylor, 946 F.2d 340, 344 (4th Cir. 1991) (en banc) (recognizing a right to parole consideration at the time specified by Virginia law for parole eligibility); Krawetz v. Murray, 742 F. Supp. 304 (E.D. Va. 1990).
Defendants' Memorandum pays lip service to these controlling cases, but, tellingly, omits the word "fair" from its description of the nature of the consideration for parole that is required by due process. See Memorandum at 5, 7, 10. Similarly, Defendants' Memorandum cites more than once the statement in Hill, 64 F.3d at 170, that inmates have "no protected interest in the [parole] procedures themselves, only in the subject matter to which they are directed" (Memorandum at 7, 10), thus implying that there is no protected interest whatsoever in whatever parole procedures Defendants choose to employ. Defendants misconstrue Hill and ignore the legal principles underlying the Due Process Clause discussed above. Moreover, Defendants overlook the key due process right on which the Complaint is based, i.e., the right to a system that is "fundamentally fair" and includes "fair" and
4

Case 3:10-cv-00070-REP Document 5 Filed 03/15/10 Page 5 of 18
"meaningful" consideration of all the factors that Virginia law requires to be taken into account when making parole determinations regarding parole-eligible inmates.
B. Plaintiffs' Factual Allegations State a Claim for Due Process Relief Given the established due process right to fair consideration for parole as required
by Virginia law, Plaintiffs' Complaint states a claim for due process relief. The Complaint contains detailed, specific and plausible allegations about a parole system that has gone fundamentally awry. At the heart of the Complaint is the allegation that, beginning with the abolition of discretionary parole for offenses committed on or after January 1, 1995, the Defendants have administered the parole process in a manner that has eliminated fair and meaningful consideration of parole for inmates convicted of violent offenses. Complaint ~~ 1, 39. Specifically, when making parole determinations concerning such inmates, the Defendants focus solely or primarily on the crimes committed and do not give fair or meaningful consideration to the other factors that Virginia law requires to be considered. Id. 1 As a result, inmates convicted of violent offenses routinely receive virtually automatic denials of parole even when other parole factors strongly favor release. Complaint ~ 39. Significantly, Defendants' Memorandum simply ignores these key allegations at the heart of the Complaint.
The allegations of the Complaint establish far more than a mere possibility that the Board no longer accords fair and meaningful consideration to violent offenders as candidates for parole. As the Complaint details:
• Defendants have eliminated the Board's prior use of risk assessment guidelines before the abolition of parole, which are uniformly recognized in Virginia and elsewhere as important standards for informing discretionary parole decisions. Complaint ~ 37.
These other factors include the prisoner's history, physical and mental condition and character and his conduct, employment and attitude while in prison. See Va. Code § 53.1-155.
5

Case 3:10-cv-00070-REP Document 5 Filed 03/15/10 Page 6 of 18
• Defendants have rendered Virginia's geriatric release statute a dead letter, by requiring candidates for geriatric release (who are all age 60 or older) to demonstrate "compelling reasons" for release. Complaint ~ 56.
• Defendants have abandoned personal Board interviews of parole candidates that continue to be used in most other states, were important to the Supreme Court's due process analysis in Greenholtz, 2 and were implemented by the Board during and in response to the Franklin v. Shields litigation. Complaint ~ 41.3
• Defendants have replaced Board interviews with parole examiner reports that have become purely perfunctory and they do not solicit information from prison wardens or staff about the suitability for release of inmates under their care. Complaint ~~ 41, 42.
• Defendants have eliminated regular consultations among Board members about candidates for parole, and they no longer even regularly meet in the Board's Richmond office. Complaint ~ 43.
• Defendants have arbitrarily used three-year deferrals without regard to any change in the inmate's institutional conduct. Complaint ~ 44.
• Defendants have acted to reduce the already limited opportunities for the inmate's family members to meet with even a single Board member. Complaint ~ 45.
Each of these actions and omissions provides further support for and evidence of Defendants'
violation of the Due Process Clause.4

2

See 442 U.S. at 4-5, 15.

3

See 569 F.2d at 793.

4

Rather than address Plaintiffs' key allegations at the heart of the Complaint, i.e., that the

Defendants are not considering all the required parole factors and are instead automatically

denying parole solely because ofthe crime, the Defendants create a straw man and then knock it

down. They characterize each of the foregoing actions and omissions as a separate due process

claim and then cite cases rejecting such individual claims. Memorandum at 5-10. This

misconstrues the nature of Plaintiffs' claims, as explained above. Moreover, many of the cases

cited by Defendants involved claims by individual inmates challenging their denials of parole. E.g., Bloodgood v. Garraghty, 783 F. 2d 470 (4th Cir. 1986), and Jennings v. Virginia, 61 F.

Supp 2d 462 (E.D. Va. 1999). Plaintiffs do not allege that they been wrongfully denied parole,

but that they have been wrongfully denied/air consideration for parole. At the Rule 12(b)(6)

stage, the question is whether the Plaintiffs' due process claim is supported by specific and

credible allegations, which as noted above include numerous changes in the procedures that the

Board previously used at a time when violent offenders still had realistic prospects for parole.

6

Case 3:10-cv-00070-REP Document 5 Filed 03/15/10 Page 7 of 18

The Complaint also alleges the results of Defendants' failure to provide fair and meaningful consideration for parole, thereby further evidencing the plausibility of Plaintiffs' claim for due process relief. It is the cumulative nature of the changes which result in the denial of due process. Following the abolition of parole, Defendants' policies and procedures have transformed the parole process from a discretionary balancing of the required factors in which parole was granted approximately 42% of the time, into a rote denial of parole for violent offenders based solely or primarily on the nature of their offenses. Complaint,-r,-r 30, 47. In each of the last seven fiscal years for which data is available, the parole grant rate for violent offenders ranged from a mere 2.1 % to 3.7%. Complaint,-r 47. The handful of inmates granted discretionary parole often receive it only at the very end of their sentences, long after they became eligible for parole. Complaint,-r 48. Both the Board and the Office of the Governor have themselves conceded that the virtual non-existence of parole for violent offenders is precisely because they are violent offenders, without consideration of or regard for other factorss that make them "suitable for parole.,,6 Complaint,-r,-r 49,50. In fiscal years 2006 and 2007, the "serious nature and circumstances of the crime" was the sole reason given for almost half of the Board's denials of parole. Complaint,-r 52. The Board's rubber-stamp denials based on "serious nature and circumstances of offense" extend even to inmates who have been incarcerated for many years (even decades) and are now at the age when sentencing authorities (such as the Virginia Criminal Sentencing Commission) recognize they are generally at very low risk of reoffending. Complaint,-r,-r 54-56.

5

In its due process analysis in Greenholtz, the Court stated that "The behavior of an inmate

during confinement is critical in the sense that it reflects the degree to which the inmate is

rrepared to adjust to parole release." 442 U.S. at 15.

Virginia law requires the Board to release those "found suitable for parole...." Va. Code

§ 53.1-136.

7

Case 3:10-cv-00070-REP Document 5 Filed 03/15/10 Page 8 of 18
The Board's lack of fair or meaningful consideration of violent offenders for parole is also starkly evidenced by its treatment of the eleven named Plaintiffs. Complaint ~~ 6071. None of the named Plaintiffs had any record of prior violent offenses as an adult. Almost all of them committed their offense at a young age. They include inmates (Plaintiffs Carter, King, Perdue, and Stump) who were acting under the influence of drugs or alcohol at the time of their offenses but who have completed substance abuse programs while in prison and have been drug and alcohol-free for many years. They include inmates (Plaintiffs Burroughs and Tabor) who were not principals but accessories to the crime. Each Plaintiff has a record of model institutional conduct, exemplary annual evaluations, and a solid release plan. Their files include testimonials from corrections staff about their "exceptional institutional conduct" expressly supporting the grant of parole, and include such statements as "I don't know of anyone who deserves a second chance more." Yet, each Plaintiff has been denied parole, year after year, going back many years -- some of them more than 20 times -- based solely or primarily on the violent nature of his or her offense. They have been incarcerated for periods ranging from 23 to 36 years. Three of them are in their 60s. Most of them have already served more than twice the average time served for the same offense prior to the abolition of parole in 1994.
In short, the Complaint makes specific factual allegations in support of Plaintiffs' due process claim that are more than sufficient to state a claim. The Complaint asserts a detailed and plausible claim that, following the abolition of parole for offenses committed after 1994, the Board has arbitrarily abdicated its statutory responsibility to provide fair and meaningful consideration of each violent offender's suitability for release once he or she has served the time
8

Case 3:10-cv-00070-REP Document 5 Filed 03/15/10 Page 9 of 18

required by statute to become eligible for parole.7 Indeed, the Board has conceded as much by defending its low grant rate solely by reference to the violent nature of the offenses of those denied parole. Complaint ~ 50.
In essence, the Board has substituted for the eligibility period established by the General Assembly (and relied upon by sentencing courts) its own determination that, for some additional period of time, it will automatically deny parole to violent offenders solely because of the "serious nature and circumstances of the crime," without reference to any other factor relating to suitability for release. The Board's longer period oftime appears to include, at a minimum, the period established by sentencing guidelines for violent offenses committed after 1994, which are required by law to exceed by from 134% to 513% the time served by similar offenders released from 1988 through 1992. Complaint ~~ 58-59, citing Va. Code § 17.1-805. Such conduct, as fully alleged in the Complaint, is more than sufficient to state a claim for relief under the Due Process Clause.
C. Other Courts Have Agreed That Similar Allegations State a Claim for Due Process Relief Although Defendants suggest that Plaintiffs' allegations cannot state a claim for
relief under the Due Process Clause, other courts have recognized just such a claim. In a recent case with allegations very similar to those presented here, the United States District Court for the Southern District of New York denied a motion to dismiss and held that the inmate plaintiffs had stated a claim under the Due Process Clause based upon the unfair and arbitrary administration of parole in New York. Graziano v. Pataki, 2006 U.S. Dist. LEXIS 52556, at *22-28 (S.D.N.Y

7

Virginia law provides that eligibility for parole consideration generally ranges from 12 to

15 years, depending on the nature of the offense, with reductions for good conduct and other

factors. Va. Code § 53.1-151. The statute also provides longer periods for eligibility for certain

specified crimes or sentences. E.g., § 151.D (twenty years for a person sentenced to two or more

life sentences).

9

Case 3:10-cv-00070-REP Document 5 Filed 03/15/10 Page 10 of 18
July 17, 2006). Like here, the plaintiffs in Graziano alleged that the New York parole board had an ''unofficial policy of denying parole release to prisoners convicted" of violent crimes and not considering any other relevant or statutorily mandated factor. Graziano, 2006 U.S. Dist. LEXIS 52556, at *4-5. The court concluded that ''while there is no due process right to being granted parole, there is a due process right to have the decision made only in accordance with the statutory criteria." Graziano, 2006 U.S. Dist. LEXIS 52556, at *27 (emphasis in original). See also Irons v. Carey, 505 F.3d 846, 854 (9th Cir. 2007) ("in some cases, indefinite detention based solely on an inmate's commitment offense, regardless of the extent of his rehabilitation, will at some point violate due process ...."); Biggs v. Terhune, 334 F.3d 910,917 (9th Cir. 2003) ("A continued reliance in the future on an unchanging factor, the circumstance of the offense and conduct prior to imprisonment, runs contrary to the rehabilitation goals espoused by the prison system and could result in a due process violation"). Thus, notwithstanding Defendants' arguments to the contrary, Plaintiffs' allegations do state a valid claim under the Due Process Clause, and other courts have reached the same conclusion.
D. Plaintiffs' Complaint States a Claim for Which Relief Can Be Granted Under the Due Process Clause. As alleged in the Complaint, the Defendants' conduct is the antithesis of fair and
meaningful consideration for parole, or of the kind of "informed predictions" contemplated by the Fourth Circuit in Gaston. It is instead the kind of arbitrary action that Justice Powell recognized strikes at the very core of personal liberty. Greenholtz, 442 U.S. at 18 (concurring in part and dissenting in part). It is no answer to argue, as Defendants do, that the Board "has absolute discretion in matters of early parole release." Memorandum at 9. Although "the Board has discretion in weighing different issues ... in accordance with the governing procedures, it does not have the discretion to not use those procedures." White v. Director, Virginia
10

Case 3:10-cv-00070-REP Document 5 Filed 03/15/10 Page 11 of 18
Department a/Corrections, 105 F. Supp. 2d 515, 519 (W.D. Va. 2000), appeal dismissed, 243 F.3d 545 (4th Cir. 2000). The Complaint alleges that the Defendants are not exercising discretion because they are not considering all the factors required by Virginia law in making parole determinations about violent offenders. Hence, Defendants' motion to dismiss Count I should be denied. II. The Complaint States a Claim for Relief Under the Ex Post Facto Clause
The essence of Defendants' argument against the ex post/acto claim is found in their assertions that "Plaintiffs contend that it is the changes in attitudes, practices and policies which constitute the ex post facto violation ... [and that] Plaintiffs cannot establish an ex post facto violation based on Defendants adopting less favorable attitudes, guidelines, policies, or practices." Memorandum at 11-12. In support of this argument they cite Warren v. Baskerville, 233 F.3d 204, 207 (4th Cir. 2000), where the court stated that "the ex post facto prohibition applies to 'laws' ... [and not to a] change in an administrative policy that was in effect at the time ofa criminal's underlying offenses...."
Defendants again misconstrue Plaintiffs' allegations. Plaintiffs' claim is that the Defendants' policies, practices and procedures have altered Virginia law by automatically denying the Plaintiffs and class members parole solely or primarily because of their crimes and eliminating consideration of the other parole-relevant factors required by Virginia law. Stated another way, Defendants have replaced the system for fair and meaningful parole consideration provided for by Virginia law with a scheme of their own in which violent offenders are deprived of any fair or meaningful consideration for parole until long after they became eligible for parole, if ever. As demonstrated below, Plaintiffs have alleged sufficient facts to state a valid claim under the Ex Post Facto Clause.
11

Case 3:10-cv-00070-REP Document 5 Filed 03/15/10 Page 12 of 18
A. The Prohibitions of the Ex Post Facto Clause are not Limited to Changes of Statutory "Law" The Constitution of the United States prohibits the enactment of ex postfacto
laws. U.S. CONST., Article I, §10, cl. 1. The Clause "guards against" the danger that the government "might disfavor certain persons after the fact. ..." Garner v. Jones, 529 U.S. 244, 246 (2000). 8 Among other things, the Ex Post Facto Clause bars retroactive enhancement of punishment beyond what was contemplated by the law at the time a crime was committed. Id. at 249. In the context of parole, the controlling inquiry is whether the retroactive application of a change in laws or policies creates a "sufficient risk of increasing the measure of punishment attached to the covered crimes." Id. at 250.
In Garner, the Supreme Court addressed an inmate's ex post facto challenge to a rule issued, not by Georgia's legislature, but by its parole board. The rule changed the presumptive frequency with which inmates serving life sentences must be considered for parole from once every three years to once every eight years, with discretion to reduce that period upon changed circumstances or new infonnation. Id. at 247. The Court of Appeals for the Eleventh Circuit held that the rule violated the Ex Post Facto Clause. Id. at 248-49. The Supreme Court reversed and remanded for further proceedings consistent with its opinion to address what the Court had stated earlier in its opinion was the detenninative question: whether the amended Georgia rule created "a significant risk of prolonging respondent's incarceration." Id. at 251, 257.
Cf Complaint ~ 35 (at the time of parole abolition in Virginia, the Virginia Commission on Sentencing and Parole concluded - "regrettably" that "the benefits and limitations of the existing parole system must...remain available for those inmates currently serving time in the prison system").
12

Case 3:10-cv-00070-REP Document 5 Filed 03/15/10 Page 13 of 18
Garner makes clear that the prohibitions of the Ex Post Facto clause are not limited to changes in "statutory 'law,'" as Defendants contend. Memorandum at 11. For one, the challenged conduct in Garner was an amended parole board rule, not a Georgia statute. The Garner majority did not hesitate to consider the parole board rule under the Ex Post Facto clause or otherwise suggest that the challenged conduct was not subject to an ex post facto challenge.9 Moreover, while the Court noted that the terms of the amended rule did not show a significant risk of prolonging the inmate's incarceration, that did not end the inquiry. The Court noted that "[t]he presence of discretion does not displace the protections of the Ex Post Facto Clause" (Jd. at 253),10 and stated that the inmate could establish the requisite risk of prolonging his incarceration by "evidence drawn from the rule's practical implementation by the agency ... that its retroactive application will result in a longer period of incarceration." Id. at 255. Significantly, in its remand the Supreme Court instructed the lower courts to address the inmate's claims that he had not been permitted sufficient discovery to make the requisite showing. Id. at 257. Thus, as Garner recognized, the prohibitions of the Ex Post Facto Clause reach not just the text of the law at issue, but also to the practices, procedures, attitudes and other factors that affect the way in which that law is actually implemented.

9

Only the concurring opinion of Justice Scalia made such an argument, but this argument

was not joined by the other justices. Garner, 529 U.S. at 257-259.

10 As noted in Part I above, the essence of the Complaint in this case is that Defendants are

not engaging in a discretionary balancing of the statutory factors governing parole with respect to

violent offenders. However, under Garner, even if the Board were exercising some discretion

that would not end the inquiry as to whether the Board's new policies and practices have created

a significant risk of prolonging the Plaintiffs' incarceration. See also Mickens-Thomas v.

Vaughn, 321 F.3d 374 (3d Cir. 2003), cert. denied, 540 U.S. 875 (200~; but cf Foster v. Booker, Nos. 08-1371 et al. (6th Cir. Feb. 18,2010), slip op. at 15, 18-19 (pet for reh 'g and suggestion for

r.eh 'g en banc March 2,2010) (finding Garner test not met after discovery where new Board

informed and exercised its discretion differently, based in part on conclusion that old and new

parole rates did not differ significantly)

13

Case 3:10-cv-00070-REP Document 5 Filed 03/15/10 Page 14 of 18
Since Garner, most lower courts have agreed that application of the Ex Post Facto Clause is not limited to statutes. See, e.g., Michael v. Ghee, 498 F.3d 372,382-83 (6th Cir. 2007) (overtumingprecedent which only applied expostfacto analysis to statutes); Fletcher v. Reilly, 433 F.3d 867,876 (D.C. Cir. 2006) (citing Garner, 529 U.S. at 251). See also Brown v. Williamson, 314 Fed. Appx. 492, 495 (3d Cir. 2009) (applying expostfacto analysis to new parole guidelines); United States v. Restrepo-Suares, 516 F. Supp. 2d 112, 117 (D.D.C. 2007) (discussing circuit split on whether Garner applies to all parole regulation or only legislative rules). Defendants cite only a single case, Warren, for the proposition that "the ex post facto prohibition applies to 'laws.'" Memorandum at 12. The Warren court's discussion on this point is dictum, however, because the court concluded that the Ex Post Facto clause was inapplicable for other reasons (i. e., because there had been no real change between the old and the new law and no change in the effect on the prisoner). Warren, 233 F.3d at 207. In any event, to the extent that Warren can be read to bar an ex post facto challenge to administrative policies, practices and procedures as distinct from such a challenge to a statute, its analysis of such challenges in the context of parole has been superseded by the analysis of the Supreme Court in Garner, 529 U.S. at 250-51.
B. Plaintiffs' Factual Allegations State a Claim for Ex Post Facto Relief Parole eligibility is "part of the law annexed to the crime" at the time of the
offense and sentencing. Fender v. Thompson, 883 F.2d 303,305 (4th Cir. 1989). The Complaint includes specific and plausible allegations in support of the claim that, under Garner, the Board's challenged conduct since the abolition of parole has created a significant risk of prolonging the
14

Case 3:10-cv-00070-REP Document 5 Filed 03/15/10 Page 15 of 18

Plaintiffs' incarceration beyond that contemplated at the time they were sentenced. Under
Garner, this is the key question raised by Plaintiffs' ex post facto claim. 11
The Complaint alleges that, prior to 1995, Virginia judges, prosecutors, and
defense counsel were well aware of the availability of parole, and that lengthy sentences imposed
at the time of the offense were based upon their expectation that the Parole Board would
continue to provide a fair and meaningful opportunity for reducing those sentences by granting
parole to those who demonstrated rehabilitation and suitability for release. Complaint W30-32.
The Complaint also alleges that:
• the Board has systematically dismantled procedures previously employed to ensure fair and meaningful consideration for parole. Complaint ~~ 36-46.
• violent offenders who are eligible for parole today are serving far longer for the same offense than they would have served prior to that time, as evidenced by the dramatic drop in the parole grant rate beginning in 1995. Complaint ~~ 30,47.
• hundreds of members of the proposed class have already served longer than they would have served even under the "truth-in-sentencing" guidelines established for offenses committed after 1994 (which were intended to result in far greater time served for violent offenses). Complaint ~~ 58-59.
Indeed, the Complaint alleges far more than a significant risk of increased time served: all eleven
Plaintiffs have already served substantially more than the 12.4 years that was the median
sentence for the same offense during fiscal years 1988 through 1992 - some more than twice as long. Complaint ~~ 57-71.
These allegations are more than sufficient to state an ex post facto claim. See,
e.g., Dotson v. Collins, 317 Fed. Appx. 439 (6th Cir. 2008) (citing Michael, 498 F.3d at 384)

11

The question is not whether the Parole Board's actions have increased the "measure of

punishment" by extending the sentence imposed by Virginia courts and juries, as Defendants

suggest. Memorandum at 12. Nor is it whether there has been at least one inmate convicted of a

violent offense who has been granted parole since 1995, or whether Plaintiffs "have served the

full term of their criminal sentences." Memorandum at 12. Such assertions misread Garner.

15

Case 3:10-cv-00070-REP Document 5 Filed 03/15/10 Page 16 of 18
(unpublished opinion); Brown v. Palmateer, 379 F.3d 1089 (9th Cir. 2004); Brown v. Williamson, 314 Fed. Appx. 492,495 (3d Cir. 2009); Fletcher v. Reilly, 433 F.3d 867 (D.C. Cir. 2006); Mickens-Thomas v. Vaughn, 321 F.3d 374 (3d Cir. 2003) (citing elimination of risk assessment guidelines), cert. denied, 540 U.S. 875 (2003); Mickens-Thomas v. Vaughn (Mickens II), 355 F.3d 294 (3d Cir. 2004); Sellman v. Reilly, 551 F.Supp. 2d 66 (D.D.C. 2008); Graziano v. Pataki, 2006 U.S. Lexis 52556 (S.D.N.Y. 2006). See also Rodriguez v. United States Parole Commission, 594 F.2d 170, 176 (7th Cir. 1979) ("Denial of any meaningful opportunity for parole" following changed policy constitutes ex postfacto violation).
C. Plaintiffs' Complaint States a Claim for Which Can Be Granted Under the Ex Post Facto Clause. In short, the Ex Post Facto Clause prohibits the retroactive application of a
change in laws or policies that creates a "sufficient risk of increasing the measure of punishment attached to the covered crimes." Garner, 529 U.S. at 250-251. Here, Plaintiffs have alleged more than sufficient facts to support their claim that the Parole Board's retroactive changes in the policies and procedures governing parole have created a significant risk of increasing the punishment of Plaintiffs and the class members. As the court recognized in Graziano v. Pataki, a claim that "discretionary parole has been materially altered by an outright policy to deny parole to certain prisoners, regardless of positive considerations" states a valid claim for relief under the Ex Post Facto Clause under the analysis required by Garner. Graziano, 2006 U.S. Dist. LEXIS 52556, at *33. Hence, the Defendants' motion to dismiss Count II of the Complaint should be denied.
16

Case 3:10-cv-00070-REP Document 5 Filed 03/15/10 Page 17 of 18

CONCLUSION

For the reasons stated in this memorandum, the Defendants' Motion to Dismiss

should be denied.

Dated: March 15,2010

SHARON BURNETTE, PAMELA K. BURROUGHS, FRANK CARTER, JR., EDWARD CONQUEST, DONALD W. HOFFMAN, MONTY KING, LARRY MACON, MARVIN MCCLAIN, BENJAMIN PERDUE, JR., HENRY STUMP and BARBARA TABOR, suing on behalf of themselves and all others similarly situated

By____________ _ ~/s~/ ________________ Of Counsel
Stephen A. Northup, VSB No. 16547 Robert A. Angle, VSB No. 37691 Robert M. Luck, VSB No. 78763 TROUTMAN SANDERS LLP Post Office Box 1122 Richmond, Virginia 23218-1122 (804) 697-1240 (804) 698-5120 (fax)
Alex R. Gulotta, VSB No. 37097 Abigail Turner, VSB No. 74437 Gail Starling Marshall, VSB No. 7737 LEGAL AID JUSTICE CENTER 100 Preston Avenue Charlottesville, Virginia 22903 (434) 977-0553
William R. Richardson, Jr., VSB No. 16139 2674 Marcey Road Arlington, Virginia 22207 (703) 447-8328
Counsel for Plaintiffs

17

Case 3:10-cv-00070-REP Document 5 Filed 03/15/10 Page 18 of 18
CERTIFICATE OF SERVICE
I hereby certify that on this 15th day of March 2010, I caused to be served by hand delivery and electronically filed the foregoing pleading with the Clerk of the Court using the CMlECF system, which then will send automatic notification of such filing (NEF) to the following:
Richard C. Vorhis, SAAG, VSB #23170 Office of the Attorney General Public Safety and Enforcement Division 900 East Main Street Richmond, Virginia 23219 Telephone: (804) 786-4805 Facsimile: (804) 786-4239
Counsel for Defendants
/s/ Stephen A. Northup, VSB #16547
steve.northup@troutmansanders.com TROUTMAN SANDERS LLP Troutman Sanders Building 1001 Haxall Point Richmond, Virginia 23219 Telephone: (804) 697-1240 Facsimile: (804) 698-5120
I 930229v2
18

 
 Case 3:10-cv-00070-REP Document 25 Filed 11/22/10 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
RICHMOND DIVISION

SHARON BURNETTE, et aI.,
Plaintiffs, v.
HELEN F. FAHEY, in her capacity as Chair of the Virginia Parole Board, et aI.,
Defendants.

Civil Action No. 3:10cv70

PLAINTIFFS' RULE 59(e) MOTION TO ALTER OR AMEND JUDGMENT
Plaintiffs respectfully move the Court, pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, to alter or amend the Order granting Defendant's Rule 12(b)(6) Motion to Dismiss by changing the Order to a dismissal without prejudice. The purpose of the requested change is to give Plaintiffs an opportunity to amend their Class Action Complaint to comply with the standards articulated by the Court in its Memorandum Opinion filed simultaneously with its order of dismissal. Plaintiffs further request that the Court grant Plaintiffs a period of at least sixty days from the date of the order amending or altering the judgment within which to file a motion for leave to file an amended complaint, together with a copy of the proposed amended complaint.
The grounds for this motion are more fully set forth in Plaintiffs' supporting memorandum filed herewith.

Case 3:10-cv-00070-REP Document 25 Filed 11/22/10 Page 2 of 3

Respectfully Submitted, November 22,2010
Stephen A. Northup, VSB No. 16547 Robert A. Angle, VSB No. 37691 Robert M. Luck III, VSB No. 78763 TROUTMAN SANDERS LLP Post Office Box 1122 Richmond, Virginia 23218-1122 (804) 697-1240 (804) 698-5120 (fax)
Alex R. Gulotta, VSB No. 37097 Abigail Turner, VSB No. 74437 Gail Starling Marshall, VSB No. 7737 LEGAL AID JUSTICE CENTER 100 Preston Avenue Charlottesville, Virginia 22903 (434) 977-0553
William R. Richardson, Jr., VSB No. 16139 2674 Marcey Road Arlington, Virginia 22207 (703) 447-8328

SHARON BURNETTE, PAMELA K. BURROUGHS, FRANK CARTER, JR., EDWARD CONQUEST, DONALD W. HOFFMAN, MONTY KING, LARRY MACON, MARVIN MCCLAIN, BENJAMIN PERDUE, JR., HENRY STUMP and BARBARA TABOR, suing on behalf of themselves and all others similarly situated

By:

/s/

Of Counsel

-2 -

Case 3:10-cv-00070-REP Document 25 Filed 11/22/10 Page 3 of 3

CERTIFICATE OF SERVICE
I hereby certify that on this 22nd day of November 2010, I caused to be electronically
filed the foregoing pleading with the Clerk of the Court using the CMlECF system, which then
will send automatic notification of such filing (NEF) to the following:
Richard C. Vorhis, SAAG, VSB No. 23170 Office of the Attorney General Public Safety and Enforcement Division 900 East Main Street Richmond, Virginia 23219 Telephone: (804) 786-4805 Facsimile: (804) 786-4239
Counsel for Defendants

1997676vl

/s/ Stephen A. Northup, VSB No. 16547 steve.northup@troutmansanders.com TROUTMAN SANDERS LLP Troutman Sanders Building 1001 Haxall Point Richmond, Virginia 23219 Telephone: (804) 697-1240 Facsimile: (804) 698-5120

-3-

 
 Case 3:10-cv-00070-REP Document 30 Filed 12/07/10 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

SHARON BURNETTE, PAMELA K. BURROUGHS, FRANK CARTER, JR., EDWARD CONQUEST, DONALD W. HOFFMAN, MONTY KING, LARRY MACON, MARVIN MCCLAIN, BENJAMIN PERDUE, JR., HENRY STUMP And BARBARA TABOR, suing on behalf of themselves and others similarly situated,

Plaintiffs,

v.

Civil Action No. 3:10cv70

HELEN F. FAHEY, in her capacity as Chair of the Virginia Parole Board; CAROL ANN SIEVERS, in her capacity as Vice-Chair of the Virginia Parole Board; and JACKIE T. STUMP, MICHAEL M. HAWES, and RUDOLPH C. MCCOLLUM, JR., in their capacity as Members of the Virginia Parole Board,

Defendants.

MEMORANDUM IN SUPPORT OF DEFENDANTS’ MOTION IN OPPOSITION TO PLAINTIFF’S MOTION TO ALTER
OR AMEND JUDGMENT PURSUANT TO RULE 59(e)

Defendants, by counsel, oppose Plaintiffs’ Motion To Alter or Amend Judgment, and

state as follows.

On May 11, 2010, this Court heard oral argument on the Motion to Dismiss that was

thoroughly briefed by both parties. On October 25, 2010, this Court granted Defendant’s Rule 12(b)(6) motion to dismiss with an accompanying memorandum opinion.1 Plaintiffs, by

counsel, have filed a timely motion to alter or amend the judgment of this Court. Plaintiffs

request that this Court vacate the order to provide that the dismissal be without prejudice and to

1 On October 27, 2010, orders clarifying typographical errors were entered.

Case 3:10-cv-00070-REP Document 30 Filed 12/07/10 Page 2 of 6
provide Plaintiffs a period of at least 60 days from the date of the order to file a motion for leave to file an amended complaint. Plaintiffs have not proffered their intended amended complaint. Plaintiffs’ request fails to meet the standard for vacating or altering a judgment under Rule 59(e).
Plaintiffs have moved for the judgment to be vacated under Rule 59(e) but have failed to show any of the three requisite grounds. For Rule 59(e) relief, plaintiffs must be able to show that the amendment of judgment is necessary to either (1) accommodate an intervening change in controlling law; (2) to account for new evidence not available at trial; or (3) to correct a clear error of law or prevent manifest injustice. Lux v. Spotswood Constr. Loans, 176 Bankr. 416 (E.D. Va. 1993), aff’d., 43 F.3d 1467 (4th Cir. 1994); Equal Opportunity Employment Opportunity Commission, v. Lockheed Martin Corp., 116 F.3d 110 (4th Cir. 1997). Plaintiffs have neither asserted nor supported such showings.
Plaintiffs have not cited, nor are Defendants aware of, any change in the controlling law. Plaintiffs have not cited any new evidence to support such a motion. The motion simply states that “counsel will allege additional facts to support the central allegation that the Defendants are not providing even the minimal consideration for parole that is mandated by due process.” Memorandum In Support of Plaintiffs’ Motion to Alter or Amend Judgment Pursuant to Rule 59(E) at 5. However, this neither provides the facts nor explains why such facts were not previously alleged and could not be previously discovered. This self serving statement is not a sufficient showing of new evidence not available for trial. See Hutchinson v. Staton, 994 F.2d 1076 (4th Cir. 1993). Plaintiffs do not allege any error of law in this Court’s Memorandum Opinion or the accompanying motion rulings. Likewise, nothing in Plaintiffs’ motion asserts or supports any manifest injustice to be corrected by a leave to amend.
2

Case 3:10-cv-00070-REP Document 30 Filed 12/07/10 Page 3 of 6
Plaintiffs do not append their proposed amended pleading to the motion so neither counsel nor this Court can evaluate it to determine what injustice would be corrected. The only indications provided in the motion before this Court is counsel’s representations about what they would ask their clients to agree to, including asking certain Plaintiffs to voluntarily remove themselves from the proposed class. Given that Counsels for Plaintiffs cannot direct their clients to do so, it is impossible to determine whether this contingency would materialize.
Based on what counsel for Plaintiffs state they would hope to file, the amended claim still would not address any manifest injustice to qualify for relief under Rule 59(e). Counsel represent that they wish to remove the Plaintiffs who are violent offenders whose decisions manifest that the Board considered factors other than the originating crime. While this would remove some of the internal inconsistencies of the pleading, it would not change the factual findings that this Court has already made regarding the Board and the currently named Plaintiffs. This Court found on the basis of Plaintiffs’ own pleading: “…Plaintiffs’ own submissions reflect that the Board continues to consider the other factors listed in statute in evaluating them and other violent inmates for parole.” Memorandum Opinion (Mem. Op.) at 21-22. In its discussion of what factors the Board considers, the Court noted that some of the Plaintiffs (such as Burroughs) had received parole denials citing factors in addition to her murder conviction. See Mem. Op. at 22, f. 8. These instances where the Board affirmatively cites factors other than the nature of the offense is evidence that directly counters one of Plaintiffs’ contentions—that the Board is denying parole solely on the nature of the crime without looking at other factors. Simply eliminating those particular plaintiffs after the fact does not change the factual finding that the Board does consider other factors and that the Board has not effectively abolished parole. Just as importantly, this Court did not base this particular factual finding solely on the presence
3

Case 3:10-cv-00070-REP Document 30 Filed 12/07/10 Page 4 of 6
of those particular Plaintiffs but cited to other portions of Plaintiffs’ pleading including Plaintiffs own statistics. See Mem. Op. at 22-24. Plaintiffs do not appear to dispute the findings of this Court or the evidence that the Court relied upon. Instead, Plaintiffs appear to seek to remove the basis for the findings from the pleading, thereby undercutting them. Just as omitting certain Plaintiffs would not change the veracity and legitimacy of the factual finding, omitting the statistics would not change them or the practices that they represent. The removal of certain Plaintiffs from an amended pleading would not serve to correct a manifest injustice simply because they, in part, help disprove the assertion that the Plaintiffs wish the Court to accept.
Plaintiffs have had ample time and opportunity to amend the complaint prior to judgment. After extensive briefing by the parties, the hearing on the Motion To Dismiss was conducted on May 11, 2010. Plaintiffs did not move for leave to amend prior to this Court’s ruling on October 25, 2010, in spite of the arguments, the briefs, and the Court’s own questioning during oral argument. If there were a manifest injustice capable of being avoided by an amended complaint, Plaintiffs had ample opportunity prior to this Court’s ruling in which to do so. Instead, after a final judgment has been entered, Plaintiffs still do not proffer an amended complaint but merely request this Court vacate its order to permit them the opportunity to attempt to do so.
Accordingly, Plaintiffs not having made the requisite showing for relief under Fed. R. Civ. P. 59(e), the motion to alter or amend should be denied.
Respectfully submitted, HELEN F. FAHEY CAROL ANN SIEVERS JACKIE T. STUMP MICHAEL M. HAWES RUDOLPH C. MCCOLLUM, JR.
4

Case 3:10-cv-00070-REP Document 30 Filed 12/07/10 Page 5 of 6
By: ______________/s/______________ Richard C. Vorhis, SAAG, VSB #23170 Attorney for Defendants Office of the Attorney General Public Safety and Enforcement Division 900 East Main Street Richmond, Virginia 23219 Phone: 804-786-4805 Fax: 804-786-4239 rvorhis@oag.state.va.us
CERTIFICATE OF SERVICE
I hereby certify that on the 7th day of December, 2010, I will electronically file the foregoing
with the Clerk of Court using the CM/ECF system, which will then send a notification of such filing
(NEF) to the following:
Stephen A. Northup, Esquire TROUTMAN SANDERS LLP, Post Office Box 1122 Richmond, Virginia 23218-1122 steve.northup@troutmansanders.com
Abigail Turner, Esquire Gail Starling Marshall, Esquire Legal Aid Justice Center 1000 Preston Avenue, Suite A Charlottesville, VA 22903 abigail@justice4all.org
Alex R. Gulotta, Esquire Legal Aid Justice Center 100 Preston Avenue Charlottesville, Virginia 22903 alex@justice4all.org
Robert A. Angle, Esquire TROUTMAN SANDERS LLP Post Office Box 1122 Richmond, Virginia 23218-1122 robert.angle@troutmansanders.com
5

Case 3:10-cv-00070-REP Document 30 Filed 12/07/10 Page 6 of 6

And I hereby certify that I will mail the document by U.S. mail to the following non-filing user:

John R. Lay, #1084578/367680 Nottoway Correctional Center P.O. Box 488 Burkeville, VA 23922

______________/s/_______________ Richard C. Vorhis, SAAG, VSB #23170 Attorney for Defendants Office of the Attorney General Public Safety and Enforcement Division 900 East Main Street Richmond, Virginia 23219 Phone: 804-786-4805 Fax: 804-786-4239 rvorhis@oag.state.va.us

6

 
 Case 3:10-cv-00070-REP Document 34 Filed 03/01/11 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

SHARON BURNETTE, et al.,

Plaintiffs,

v.

Civil Action No. 3:10CV70

HELEN F. FAHEY, et al.,

Defendants.

MEMORANDUM OPINION

By Memorandum Opinion and Order entered on October 25, 2010,

and amended on October 27, 2010, the Court dismissed the action

with prejudice because the Court concluded the Complaint was

legally insufficient under Ashcroft v. Iqbal, 129 S. Ct. 1937

(2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).

On November 22, 2010, Plaintiffs filed a motion for relief under

Federal Rule of Civil Procedure 59(e). In their Rule 59(e) motion,

Plaintiffs request that the Court alter or amend its order of

dismissal to be "without prejudice" in order to provide Plaintiffs

an opportunity to amend their Complaint to comply with standards

articulated by the Court in its October Memorandum Opinion.

I. STANDARD OF REVIEW \\ [R] econsideration of a judgment after its entry is an extraordinary remedy which should be used sparingly." Pac. Ins. Co. v. Am. Nat'l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998) (internal quotation marks omitted) . Relief under Rule 59(e) is appropriate \\ (I) to accommodate an intervening change in

Case 3:10-cv-00070-REP Document 34 Filed 03/01/11 Page 2 of 5
controlling law; (2) to account for new evidence not available at trial; or (3) to correct a clear error of law or prevent manifest injustice." Hutchinson v. Staton, 994 F.2d 1076, 1081 (4th Cir. 1993) (citing Weyerhaeuser Corp. v. Koppers Co., 771 F. Supp. 1406, 1419 (D. Md. 1991); Atkins v. Marathon LeTourneau Co., 130 F.R.D. 625, 626 (S.D. Miss. 1990)). The law does not permit use of Rule 59 (e) motions "to raise arguments which could have been raised prior to the issuance of the judgment." Pac. Ins. Co., 148 F. 3d at 403 (citing cases) .
,,\ [0] nee judgment is entered the filing of an amended complaint is not permissible until judgment is set aside or vacated pursuant to Fed. R. Civ. P. 59 (e) or 60 (b) . ", Laber v. Harvey, 438 F.3d 404, 427 (4th Cir. 2006) (alteration in original) (quoting Cooper v. Shumway, 780 F.2d 27, 29 (10th Cir. 1985)). Accordingly, when a party seeks to amend his or her complaint after judgment has been entered, he or she must satisfy Rule 59 (e) before being permitted to amend under Rule 15(a). Id. Leave to amend under Rule 15 (a) \\should be denied only when the amendment would be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or amendment would be futile." Matrix Capital Mgmt. Fund. L.P. v. BearingPoint. Inc., 576 F.3d 172, 193 (4th Cir. 2009).
2

Case 3:10-cv-00070-REP Document 34 Filed 03/01/11 Page 3 of 5

II. ANALYSIS

In neither their initial Memorandum nor their Reply Memorandum

supporting the Rule 59(e) Motion to Alter or Amend do Plaintiffs

demonstrate a clear error of law or any other basis for granting

Rule 59(e) relief. Apparently, Plaintiffs suggest that the Court

committed a clear error of law when it dismissed their action with

prejudice without first providing them an opportunity to amend

their complaint. See Ostrzenski v. Seigel, 177 F.3d 245, 252-53

(4th Cir. 1999). A dismissal with prejudice is appropriate when,

"the court is 'able to determine conclusively on the face of a

defective pleading whether plaintiff actually can state a claim.'"

Abbott v. SunTrust Mortg., Inc., No. 3:08cv665, 2009 WL 127858, at

*5 (E.D. Va. Jan. 15, 2009) (quoting Ostrzenski, 177 F.3d at 253) .

That was the case here. As explained below, "the allegation of

other facts consistent with the challenged pleading could not

possibly cure the deficienc [ies]" noted by the Court.

Matrix

Capital Mgmt. Fund, L.P. v. BearingPoint, Inc., 576 F.3d 172, 193

(4th Cir. 2009) (internal quotations omitted) .

Even if Plaintiffs' Rule 59{e) Motion was granted, a court may

deny leave to amend under Rule 15{a) when such amendment would be futile. 1 Unlike in Laber v. Harvey, 438 F.3d 404 (4th Cir. 2006),

1 When a plaintiff seeks leave to amend his complaint, a copy of the proposed amended pleading, and not simply the proposed amendment, must be attached to the motion. Williams v. Wilkerson, 90 F.R.D. 168, 171 (E.D. Va. 1981). Importantly, Plaintiffs did not attach a proposed amended complaint to its Motion after judgment was entered. This makes their case distinguishable from
3

Case 3:10-cv-00070-REP Document 34 Filed 03/01/11 Page 4 of 5

where the court determined that the plaintiff's amended complaint

was not futile because it specified a cause of action, Plaintiffs

cannot \\allege facts sufficient to state all elements of [their

claim]1I as required under law. Bass v. E.I. Dupont de Nemours &

Co., 324 F.3d 761,765 (4th Cir. 2003) (citing Dickson v. Microsoft

Corp., 309 F.3d 193, 213 (4th eire 2002) i Iodice V. United States,

289 F.3d 270, 281 (4th Cir. 2002».

The changes to the Complaint proposed by Plaintiffs in their

Memorandum in Support are effectively limited to (1) narrowing the

proposed class of Plaintiffs to include only individuals who were

given as the sole reason for their denial of parole the \\\nature

and circumstances o[f] the crime' II for which they are incarcerated

and (2) allegations of additional unspecified facts to support

their contention that Defendants have failed to provide

consideration for parole mandated by. due process. (PIs.' Mem. in

Supp. of Mot. to Alter or Amend J. at 4 - 5. ) However, no removal of

the named Plaintiffs nor allegation of additional facts can

substantiate a claim because the amended complaint will still

exclusively consist of Plaintiffs who received constitutionally

sufficient statements concerning the reasons for denial of parole.

\\At most

parole authorities must \ furnish to the

prisoner a statement of its reasons for denial of parole.'11 Vann

both Laber and Matrix Capital which Plaintiffs cite in support. In both instances, the parties seeking Rule 59 (e) and Rule 15 (a) relief submitted a proposed amended complaint to the court. Matrix Capital, 576 F.3d at 193; Laber, 438 F.3d at 414.
4

Case 3:10-cv-00070-REP Document 34 Filed 03/01/11 Page 5 of 5

v. Angelone, 73 F.3d 519, 522 (4th Cir. 1996) (quoting Franklin v. Shields, 569 F.2d 784, 801 (4th Cir. 1997) (en banc); citing Bloodgood v. Garraghty, 783 F.2d 470, 473 (4th Cir. 1986)); see also Swarthout v. Cooke, 131 S. Ct. 859, 863 (2011) ("[T]he responsibility for assuring that the constitutionally adequate procedures governing California's parole system are properly applied rests with California courts, and is no part of the Ninth Circuit's business."). Even now, Plaintiffs do not propose to amend their complaint in a way that affects the deficiency, whether certain named Plaintiffs received constitutionally sufficient due process. Because they cannot "allege facts sufficient to state all the elements of [their] claim," their proposed amendment, even if Rule 59(e) presents no issue, is futile. Bass, 324 F.3d at 765.
Accordingly, Plaintiffs' motion to alter or amend (Docket No. 25) will be DENIED. Defendants' motion in opposition to the motion to alter or amend judgment (Docket No. 29) will be GRANTED. William Church's "Motion to Be Added to this Class Action" (Docket No. 32) and \'Motion for Permission to File for Inj unctive Relief" (Docket No. 33) will be DENIED.
The Clerk is DIRECTED to send a copy of the Memorandum Opinion to counsel of record.
An appropriate Order will issue.

tU Date:

~tJ,t 1/ ~t/

Richmond, Virginia:

/s/ Robert E. Payne Senior United States District Judge
5

 
 Burnette v. Fahey, 687 F.3d 171 (2012)

687 F.3d 171 United States Court of Appeals,
Fourth Circuit.
Sharon BURNETTE; Pamela K. Burroughs; Frank Carter, Jr.; Edward Conquest; Donald W.
Hoffman; Monty King, formerly known as Imond Monty Hicks; Larry Macon; Marvin McClain; Benjamin Purdue, Jr.; Henry Stump; Barbara Tabor, Suing on behalf of themselves and all others similarly situated, Plaintiffs–Appellants, v.
Helen F. FAHEY, In her capacity as Chair of the Virginia Parole Board; Carol Ann Sievers, In her
capacity as Vice–Chair of the Virginia Parole Board; Jackie T. Stump, In his capacity as a Member of the Virginia Parole Board; Michael M. Hawes, In his capacity as a Member of the Virginia Parole Board; Rudolph C. McCollum, Jr., In his capacity as a Member of the Virginia Parole Board,
Defendants–Appellees, Steven Wayne Goodman, Amicus Supporting
Appellant.
No. 11–1324. |
Argued: March 21, 2012. |
Decided: July 9, 2012.
Synopsis Background: State prisoners filed action against members of Virginia Parole Board in their official capacities contending that Board had adopted policies and procedures with respect to parole-eligible inmates imprisoned for violent offenses that violated Due Process and Ex Post Facto Clauses. The United States District Court for the Eastern District of Virginia, Robert E. Payne, Senior District Judge, 2010 WL 4279403, dismissed action, and denied motion to amend, 2011 WL 796739. Plaintiffs appealed.
Holdings: The Court of Appeals, Floyd, Circuit Judge, held that:
Virginia had created limited due process liberty interest in being considered for parole at a specified time, and in

being furnished with written explanation for denial of parole, through passage of its parole statute;
allegations regarding parole board’s procedural changes, combined with denial of parole to state prisoners who had been imprisoned for violent offenses, did not create plausible, rather than merely possible, inference that board was not exercising discretion and was considering only offense, without looking to other factors, in deciding to deny parole;
declination of parole board to grant parole, even repeatedly, to state prisoners based on seriousness of their offenses, even though they had little or no criminal history at time of conviction of offense of incarceration and they had demonstrated consistently excellent institutional behavior, did not show that board had not considered other factors;
complaint which supported inference, at most, that parole board was exercising its discretion, but that, in doing so, board was taking stricter view towards violent offenders than it had in past, did not implicate Ex Post Facto Clause; and
mere fact that parole board had implemented procedural changes during same multi-year period that rate of release decreased did not produce plausible inference of causal connection to alleged Ex Post Facto Clause violation due to significant risk of extended punishment.
Affirmed.
Gregory, J., filed dissenting opinion.
Procedural Posture(s): On Appeal; Motion to Dismiss.
Attorneys and Law Firms
*174 ARGUED: Stephen Atherton Northup, Troutman Sanders, LLP, Richmond, Virginia, for Appellants. Earle Duncan Getchell, Jr., Office of the Attorney General of Virginia, Richmond, Virginia, for Appellees. ON BRIEF: Robert A. Angle, Robert M. Luck, III, Troutman Sanders, LLP, Richmond, Virginia; Abigail Turner, Alex R. Gulotta, Gail Starling Marshall, Legal Aid Justice Center, Charlottesville, Virginia, for Appellants. Kenneth T. Cuccinelli, II, Attorney General of Virginia, Stephen R. McCullough, Senior Appellate Counsel, Charles E. James, Jr., Chief Deputy Attorney General, Office of the Attorney General of Virginia, Richmond, Virginia, for

Burnette v. Fahey, 687 F.3d 171 (2012)
Appellees. Steven W. Goodman, Dillwyn, Virginia, Amicus Curiae for Appellants. Before NIEMEYER, GREGORY, and FLOYD, Circuit Judges.
Affirmed by published opinion. Judge FLOYD wrote the opinion, in which Judge NIEMEYER concurred. Judge GREGORY wrote a dissenting opinion.
OPINION
FLOYD, Circuit Judge: Appellants (the Inmates), eleven inmates in the custody of the Virginia Department *175 of Corrections (DOC), brought this action against members of the Virginia Parole Board (the Board) in their official capacities. The Inmates contend that the Board has adopted policies and procedures with respect to parole-eligible inmates imprisoned for violent offenses that violate the Due Process and Ex Post Facto Clauses of the United States Constitution. Most notably, they assert that the Board has implemented an unwritten policy of denying parole to persons incarcerated for violent offenses. The district court granted Appellees’ motion to dismiss the complaint, and the Inmates filed this timely appeal. Because we agree that the complaint fails to set forth sufficient facts to establish a plausible entitlement to relief under either a due process or ex post facto theory, we affirm.
I.
A.

Prior to 1994, Virginia law provided for discretionary parole1 of incarcerated offenders. By legislation enacted in 1994, the General Assembly abolished discretionary parole for all persons incarcerated for felony offenses committed on or after January 1, 1995. See Va.Code Ann. § 53.1–165.1. This legislation did not disrupt the availability of discretionary parole for persons who committed crimes prior to 1995, however.
The Virginia Code entrusts the administration of the discretionary parole system to the Board, and it vests the Board with broad discretion in carrying out its responsibilities. Section 53.1–136 of the Code obligates the Board to “[a]dopt ... general rules governing the granting of parole and eligibility requirements, which shall be published and posted for public review.” Id. § 53.1–136(1). And this section further instructs that the Board “shall ... [r]elease on parole” parole-eligible persons who “are found suitable for parole, according to those rules” adopted by the Board. Id. § 53.1–136(2)(a). But the Board may not release any person without first conducting a “thorough investigation ... into the prisoner’s history, physical and mental condition and character and his conduct, employment and attitude while in prison” and “determin[ing] that his release on parole will not be incompatible with the interests of society or of the prisoner.” Id. § 53.1–155(A). As a general rule, the Board must consider parole-eligible inmates on an annual basis, but it may defer subsequent review for up to three years if an inmate has at least ten years remaining on his sentence. Id. § 53.1–154.
In addition to discretionary parole, Virginia has a system of conditional release for geriatric prisoners, which it instituted in 1995. See id. § 53.1–40.01. This program is available to prisoners (i) ages sixty-five or older who have served at least five years of their imposed sentences or (ii) ages sixty or older who have served as least ten years of their imposed sentences. Id. Again, the Virginia Code grants the Board discretion to promulgate regulations implementing the geriatric release program. See id. The Board’s written policy permits it to release an inmate under the geriatric release program only upon a finding of “compelling reasons.”
B.
The Inmates allege that, since the abolition of parole for

Burnette v. Fahey, 687 F.3d 171 (2012)
new felony offenders in *176 1995, the Board has instituted policies and procedural changes that effect a de facto abolition of parole for parole-eligible persons convicted of violent offenses, defined in the complaint as “murder, rape, sodomy, robbery, assault, abduction, use of a weapon, and any other felony that the Board considers to be violent.”
As the Inmates observe, the Board has ceased utilizing a risk assessment tool that was in use prior to 1995. In addition, the Board has eliminated face-to-face interviews of prisoners by Board members, supplanting them with interviews, often via video, by parole examiners who then submit reports to the Board through an electronic database. Board members also have stopped meeting in person; instead, they circulate an inmate’s file before voting electronically to grant or deny parole. And, pursuant to a 2002 rule change, the Board has decreased the frequency of its meetings with inmates’ families and representatives, who now may schedule such meetings no more than once every two years and may meet with only one of the five Board members.
In addition to these procedural changes, the Inmates note that, in 1998, the Board repealed prior rules governing parole that it had published in the Virginia Administrative Code. In place of these rules, it distributed a “Policy Manual.” This Manual outlines fourteen factors that, according to the Board, guide its discretion in parole decisions. The nature of the offense of incarceration is one such factor, along with considerations of rehabilitation and the risk posed by the prisoner to himself and to society upon his release.
Despite the multiplicity of factors identified in this Manual, the Inmates allege that, in practice, the Board “has relied primarily, if not exclusively, on the ‘serious nature and circumstances of the crime’ when making parole determinations with regard to inmates convicted of violent offenses” and has failed to give “fair or meaningful consideration to other factors in its Policy Manual.” They claim that the Board’s procedural changes reflect its choice to consider only the nature of the original offense. The exclusive reliance on this consideration, the Inmates aver, “has resulted in virtually automatic and repeated denials of parole for inmates convicted of violent offenses, even when the other factors in the Manual and the statute would favor release.”

C.
The Inmates cite extensive statistical evidence to support their claim of a de facto abolition of parole for those convicted of violent offenses. Prior to the elimination of discretionary parole for new offenders, they note, Virginia’s parole-grant rate—the percentage of those considered who were granted parole—exceeded 40%. In 1989, 42% of those considered were released on parole, and from 1990 to 1993, the parole-grant rate averaged over 41%. As a result of this relatively high grant rate, offenders generally did not serve the entire length of their sentences: in 1993, a person convicted of a violent offense in Virginia served, on average, only 38% of his total sentence. And, according to the Inmates, these numbers led participants in the court system, including defendants and sentencing judges, to anticipate early release.
Since 1995, however, Virginia has seen a precipitous decrease in the parole-grant rate. The rate for all parole-eligible inmates dipped to 18% in fiscal year (FY) 1996. It further declined to 8% in FY 2000 and to less than 5% in FY 2008. Violent offenders face still lower parole-grant rates: the rate for inmates convicted of violent offenses ranged between 3.7% and 2.1% per year from FY 2002 to FY *177 2008. And many of those granted parole were nearing their mandatory parole release dates, often having “already served more than 85% of the time before their mandatory parole release date[s].”
The Inmates contend that one factor, the seriousness of the offense, has played the primary or exclusive role in motivating the Board to deny parole to violent offenders. In FYs 2006 and 2007, for example, the Board cited “ ‘the serious nature and circumstances of the crime’ or words to that effect” as the sole reason for its decision in approximately 45% of all parole denials.
According to the Inmates, this focus on the seriousness of the offense has also infected the Board’s administration of the geriatric release program. They allege that since the program went into effect in 1995, the Board has granted only seven geriatric release petitions. And it has named the serious nature of the original offense as the reason for 95% of the denials.

D.

Burnette v. Fahey, 687 F.3d 171 (2012)
The Inmates2 are among those parole-eligible inmates convicted of violent offenses committed prior to January 1, 1995, who have been denied parole. Each was convicted of at least one count of murder. Their sentences range from eighty years’ imprisonment to multiple life terms, and each has served at least twenty-three years of his or her term of imprisonment. While in prison, many of the Inmates have successfully completed or participated in rehabilitative, vocational, educational, or employment programs. Yet despite their largely positive institutional records and limited prior criminal records, the Board has denied parole to each Inmate on multiple occasions.
The Inmates allege the following with respect to their individual histories and experiences with the Board:
1. Sharon Burnette pled guilty to murder and use of a firearm in connection with the 1981 killing of a gas station attendant. For these crimes, she received a sentence of life plus one year. Before this, her criminal record reflected only a misdemeanor shoplifting conviction. She has had one institutional infraction during her period of incarceration, a 1982 charge for failing to stand for count. Notwithstanding this record, the Board has denied Burnette parole twelve times, each time citing only “the ‘serious nature and circumstances of the crime’ or words to that effect.”
2. Pamela Burroughs pled guilty to murder and robbery for the killing of a robbery victim in 1985. She received a life term for murder, a suspended sentence of thirty years for robbery, and a term of five years for drug distribution (charged under a separate indictment). Burroughs had only one other conviction, for trespassing. While in prison, she has received one institutional infraction, for sleeping through count. But she has been denied parole seven times, and the Board has given a single reason for these denials, the “ ‘serious nature and circumstances of the crime’ or words to that effect.”
3. Frank Carter, Jr., received an eighty year sentence for the 1976 killing of his former girlfriend and her boyfriend. His prior criminal *178 record included numerous misdemeanors and a juvenile offense, and he committed an institutional infraction for improper consensual conduct with his wife in 1987. The Board has denied Carter parole twenty-three times, citing the seriousness of his offenses as the only justification, except in 1988, when it also referenced his “poor institutional conduct.”
4. Edward Conquest had no prior criminal record at the

time he was convicted and sentenced to two life terms for first-degree murder and robbery, committed in 1975. His last institutional infraction, disobeying a direct order, occurred in 1989, and his behavior while in prison has been described as “exemplary.” Nevertheless, the Board has declined to parole him on twenty-two occasions, each time citing the serious nature and circumstances of his crimes.
5. Donald Hoffman pled guilty to murder, which he committed in 1975. The victim previously had been raped by his codefendant. For this crime, Hoffman received a life sentence. Prior to this conviction, he had been convicted of simple assault as a juvenile, and another assault charge against him had been dismissed upon accord and satisfaction. He has been cited for one institutional infraction, in 2002, for improper consensual conduct with his wife. Although DOC officials have recommended him for parole, Hoffman has been denied parole fourteen times based only on the seriousness of his crimes.
6. Monty King was sentenced to life imprisonment for felony murder and seven years’ imprisonment for robbery. The charges arose from the 1986 beating death of an elderly woman during an automobile theft. He was also sentenced to five years for a separate attempted robbery. He had no prior criminal record, and he has committed no institutional infractions since a 1994 charge of sleeping through count. Yet the Board has denied parole to King seven times, each time providing the same reason, the seriousness of his offenses.
7. Larry Macon committed his offenses in 1976. He was convicted of murder and robbery, for which he received sentences of life and nine years’ imprisonment, respectively. His prior criminal history consisted of three minor juvenile offenses and an adult gambling offense. While in prison, he has had “a few minor institutional infractions,” the most recent of which occurred in 2006. He has been denied parole eighteen times, and the Board has justified these denials solely by reference to the seriousness of his crimes.
8. Marvin McClain pled guilty to murder and robbery in 1973, prior to which his record consisted of two juvenile offenses. The complaint does not specify the length of his sentence but avers that McClain has been incarcerated for more than thirty-six years. During this time, he has incurred six disciplinary infractions and was convicted of a new crime for possessing a

Burnette v. Fahey, 687 F.3d 171 (2012)
homemade knife. The Board has denied McClain parole twenty-one times, citing the seriousness of the crimes and, occasionally, McClain’s conviction of a crime while incarcerated.
*179 9. Benjamin Purdue, Jr., was sentenced to two life terms plus twenty-one years for the malicious wounding of his former wife, the murder of her parents, and related firearms offenses. He committed these offenses in 1983. At the time of conviction, he had no prior criminal history, and he has incurred no infractions while imprisoned. On ten occasions, the Board has declined to release Purdue on parole. Each time, it has provided the same reason, the seriousness of the crimes.
10. After pleading guilty to the 1980 murder of a bootlegger, Henry Stump was sentenced to a term of ninety-three years’ imprisonment. His prior criminal record consisted of a conviction for auto theft as a juvenile and public intoxication charges. While serving his sentence, Stump has committed two disciplinary infractions, for possessing dice in 1991 and an extra pair of reading glasses in 2008. He also pled guilty to possession of controlled substances for two incidents occurring during his incarceration. The Board has declined to parole Stump on eighteen occasions. In doing so, it has always cited the seriousness of the crime and, several times, it has also referenced Stump’s commission of crimes while incarcerated.
11. In 1981, Barbara Tabor was convicted of felony murder, for which she received a sentence of life plus twenty-one years. Her criminal history at the time included only one prior conviction, for transporting stolen property. She has been charged with three minor disciplinary infractions while in prison. The Board has denied parole to Tabor eleven times. The sole reason given for each denial is the seriousness of the crime.
In sum, the Inmates claim that, in evaluating a prisoner for parole, the Board has replaced fair and meaningful review of the fourteen Policy Manual factors with consideration of only one factor, the offense for which the prisoner is incarcerated. Thus, they assert that their limited prior criminal histories and generally outstanding institutional records cannot alter the outcome of the Board’s determination because, for certain violent crimes, the Board has replaced the exercise of discretion with the automatic denial of parole. According to the Inmates, the Board fails to consider violent offenders as individuals;

instead, it effectively applies the 1994 legislative changes retroactively to eliminate discretionary parole for parole-eligible violent offenders.
II.
The Inmates brought suit, asserting that the Board’s policy changes—particularly its alleged de facto abolition of parole—violate their rights under the Due Process Clause and the Ex Post Facto Clause of the United States Constitution. The district court granted the Board’s motion to dismiss the complaint.
Analyzing the due process claim, the district court first recognized that the Inmates have a limited constitutional interest in parole consideration derived from Virginia law. But the court found that the complaint’s allegations showed that the Board afforded the Inmates sufficient process to satisfy this interest by providing each Inmate with a constitutionally valid reason for the denial of parole.
In addition, the district court found that the complaint’s factual allegations failed to support the conclusion that the Board has *180 effectively eliminated parole for inmates convicted of violent offenses. Of note, the Inmates’ statistical evidence showed that in 55% of cases the denial of parole was based on reasons other than just the serious nature and circumstances of the original offense. Moreover, according to this data, the Board continued to parole between 120 and 230 violent offenders each year, demonstrating that parole remained attainable for such inmates. And the dwindling parole-grant rates could be explained by the shrinking pool of parole-eligible individuals. The district court reasoned that those persons best suited for parole were released each year, but due to the abolition of discretionary parole for new felony offenders, no new inmates were becoming eligible for parole. Hence, each year the Board considered a smaller pool of potential parolees, less suitable for release than those considered in the past. The allegations, the district court concluded, failed to state a plausible claim for a due process violation.
The district court likewise found the Inmates’ allegations with respect to the Ex Post Facto Clause lacking. The Inmates’ statistical allegations undermined their assertion that the Board has imposed a de facto rule precluding

Burnette v. Fahey, 687 F.3d 171 (2012)
inmates convicted of violent offenses from parole. Thus, the district court concluded that, at most, the Inmates were complaining that the Board had become harsher in exercising its discretion, and because the relevant statutes had always authorized the Board to adopt a stricter stance, the pleadings were insufficient to support an ex post facto claim.
III.
“We review de novo a district court’s decision to dismiss for failure to state a claim, assuming all well-pleaded, nonconclusory factual allegations in the complaint to be true.” Aziz v. Alcolac, Inc., 658 F.3d 388, 391 (4th Cir.2011). To survive a Rule 12(b)(6) motion, a complaint must allege facts sufficient “ ‘to raise a right to relief above the speculative level,’ thereby ‘nudg[ing] the[ ] claims across the line from conceivable to plausible.’ ” Id. (first alteration in original) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955).
In undertaking this review, although we must accept the truthfulness of all factual allegations, we need not assume the veracity of “bare legal conclusions.” Aziz, 658 F.3d at 391. Therefore, like the district court, we begin our analysis by differentiating between the Inmates’ factual allegations and legal conclusions. The allegations with respect to the statistics on parole release and the Inmates’ histories and experiences with the Board are factual. As such, we accept them as true. But we will accept the conclusions the Inmates draw from these facts—that the Board has ceased exercising its discretion and, instead, denies parole automatically due to the crime of incarceration—only to the extent they are plausible based on the factual allegations.
A.

The Fourteenth Amendment’s Due Process Clause guards against unlawful deprivations of life, liberty, or property. U.S. Const. amend. XIV, § 1. Thus, in analyzing the Inmates’ due process claim, we first must consider whether, and to what extent, they have a protectible interest under this Clause. See Greenholtz v. *181 Inmates of the Neb. Penal & Corr. Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979); Slezak v. Evatt, 21 F.3d 590, 594 (4th Cir.1994). If the Inmates have asserted a protectible interest, we then determine whether they have sufficiently alleged that the Commonwealth failed to afford them the minimum procedural protections required by the Fourteenth Amendment in depriving them of this interest. See Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Slezak, 21 F.3d at 593.
“A liberty interest may arise from the Constitution itself” or “from an expectation or interest created by state laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005). An “abstract ... desire” or “unilateral expectation” is insufficient to create a protectible interest. Greenholtz, 442 U.S. at 7, 99 S.Ct. 2100 (quoting Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)) (internal quotation marks omitted). Rather, the Due Process Clause protects only those interests to which an individual has a “legitimate claim of entitlement.” Id. (quoting Roth, 408 U.S. at 577, 92 S.Ct. 2701) (internal quotation marks omitted). It is well-established in the context of parole that “[t]here is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence.” Id. Accordingly, to the extent the Inmates enjoy a protectible interest in parole, this interest must find its roots in rights imparted by Virginia law.
The Inmates assert, and the Board concedes, that Virginia law gives rise to a limited interest in consideration for parole, but not in parole release. Specifically, the Virginia Code mandates that the Board must adopt rules governing the granting of parole and eligibility for parole and that it must release eligible persons who it finds suitable for parole under these rules. Va.Code Ann. § 53.1–136(1)–(2)(a). Because the decision whether to grant parole is a discretionary one, “a prisoner cannot claim entitlement and therefore a liberty interest in the parole release.” Gaston v. Taylor, 946 F.2d 340, 344 (4th Cir.1991) (en banc); see also Vann v. Angelone, 73 F.3d 519, 522 (4th Cir.1996). This is true even if state officials consistently have exercised their discretion to grant release in the past: “A constitutional entitlement cannot be created ... merely because a wholly and

Burnette v. Fahey, 687 F.3d 171 (2012)
expressly discretionary state privilege has been granted generously in the past.” Hill v. Jackson, 64 F.3d 163, 170 (4th Cir.1995) (quoting Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458, 465, 101 S.Ct. 2460, 69 L.Ed.2d 158 (1981)) (internal quotation marks omitted). But, as the Board acknowledges, state law “giv[es] to a [parole-eligible] prisoner the right for parole consideration at a specified time.” Gaston, 946 F.2d at 344; see also Hill, 64 F.3d at 170.
Once a state has “create[d] a liberty interest, the Due Process Clause requires fair procedures for its vindication.” Swarthout v. Cooke, ––– U.S. ––––, 131 S.Ct. 859, 862, 178 L.Ed.2d 732 (2011) (per curiam). Thus, although a state is under no obligation to offer parole, once it has done so, we “will review the application of [these] constitutionally required procedures.” Id. But we are hard-pressed “to imagine a context more deserving of federal deference than state parole decisions.” Vann, 73 F.3d at 521. Thus, in the parole context, “the procedures required are minimal.” Swarthout, 131 S.Ct. at 862.
In prior challenges to Virginia’s discretionary parole system, we determined that, “[a]t most, ... parole authorities must ‘furnish to the prisoner a statement of its reasons for denial of parole.’ ” *182 Vann, 73 F.3d at 522 (quoting Franklin v. Shields, 569 F.2d 784, 801 (4th Cir.1978) (en banc)). Beyond this, we have declined to hold that, as a constitutional matter, each prisoner must “receive a personal hearing, have access to his files, or be entitled to call witnesses in his behalf to appear before the Board.” Franklin, 569 F.2d at 800.
The Inmates acknowledge that each time they were denied parole, the Board provided a reason or reasons for its denial. Typically, the reason given has been “ ‘the serious nature and circumstances of the crime’ or words to that effect.” The Inmates concede that this is a valid reason for the denial of parole. Moreover, although they object to a number of procedural changes that have occurred since the abolition of discretionary parole in 1995, the Inmates had no entitlement to the individual procedures.
The Inmates nonetheless assert that the Board has denied them due process because it has failed to consider them for parole in a fair and meaningful manner. That is, they argue that the Board has disregarded its statutory mandate by failing to determine whether a prisoner is suitable for parole through an individual analysis of the factors identified in the Policy Manual. They contend the Board, instead, has established a de facto rule denying parole to

persons imprisoned for violent offenses.
This argument falters, however, because the facts alleged in the complaint do not plausibly support this conclusion. As the district court ably explained, the statistical allegations show that the Board continues to grant parole to violent offenders, though at lower rates than in the past. The Inmates allege that in each year from FY 2002 through FY 2008, the Board released on parole between 3.7% and 2.1% of parole-eligible inmates incarcerated for violent offenses. This correlates to between 120 and slightly more than 230 inmates per year. In addition, according to the complaint, the seriousness of the offense was the sole reason given in 45% of parole denials, meaning that in more than half of denials the Board provided another reason—either instead of or in addition to this factor—to explain its decision.
These facts indicate that the Board was making individual determinations with respect to violent offenders. It was releasing numerous such offenders despite the crimes of which they were convicted. And, in many cases, it was not only considering but also relying on reasons other than the seriousness of the crime and its attendant circumstances in deciding to deny parole.
The Inmates have suggested that the Board is considering illegitimate factors in deciding to release some violent offenders but not others. They have offered only speculation in support of this view, however. In the absence of facts to the contrary, we cannot presume that the Board has failed to conform to constitutional requirements and its statutory mandate, see Garner v. Jones, 529 U.S. 244, 256, 120 S.Ct. 1362, 146 L.Ed.2d 236 (2000). Here, the Inmates’ statistical allegations fail to provide the necessary facts.
The allegations regarding the Inmates’ individual circumstances fare no better. According to the complaint, each of the Inmates had little or no criminal history at the time of his or her conviction of the offense of incarceration, and many have demonstrated consistently excellent institutional behavior. Many have successfully participated in rehabilitative, educational, vocational, or like programs while in prison. Some have garnered the support of counselors, DOC officers, and others in seeking parole. Nevertheless, the Board has refused to release them based on the seriousness of their crimes. Indeed, *183 for eight of the eleven Appellants, this factor, the “serious nature and circumstances of the crime” (or like words), has been the sole reason given in explaining repeated parole denials.3

Burnette v. Fahey, 687 F.3d 171 (2012)
Yet we cannot infer from these facts that the Board is failing to consider each Inmate individually, according to the relevant factors, when making these parole determinations. Each of the Inmates was convicted of a very serious crime or crimes, for which he or she received a lengthy sentence. It appears from the complaint that the lightest sentence given to any of the Inmates was eighty years’ imprisonment. It would be well within the Board’s discretion to consider such a prisoner holistically and nevertheless to determine that he or she has not served a sufficiently lengthy sentence in light of the grave crime, notwithstanding an otherwise clear criminal history and superlative institutional conduct. Although the ultimate result of this decisionmaking process would be to deny parole based solely on the seriousness of the prisoner’s crime, the process and decision would comply fully with constitutional demands.
Here, the factual allegations do not demonstrate that the Board has replaced this type of individual consideration with a de facto rule rejecting violent offenders. Simply put, the Board’s declination to grant parole to the Inmates—even repeatedly—based on the seriousness of their offenses cannot show that it has failed to consider other factors.4
Ultimately, the Inmates have presented only speculation that the Board has imposed a bar against parole for violent offenders. But without factual allegations supporting such an inference, we cannot presume that the Board is failing to “follow[ ] its statutory commands and internal policies in fulfilling its obligations.” Id. The Inmates, therefore, have failed to show a plausible entitlement to relief as required under the Iqbal–Twombly pleading standard.5 Consequently, we will affirm *184 the district court’s dismissal of the due process claim.
B.
The Inmates next assert that the Board has effected an ex post facto enhancement of the punishment for their crimes, in violation of the United States Constitution. This claim, too, falls short.
The Ex Post Facto Clause prevents a state from “pass[ing] any ‘ex post facto Law.’ ” Warren v. Baskerville, 233 F.3d 204, 207 (4th Cir.2000) (quoting U.S. Const. art. I, § 10, cl. 1). Among other things, this

Clause “bar[s] enactments which, by retroactive operation, increase the punishment for a crime after its commission.” Garner, 529 U.S. at 249–50, 120 S.Ct. 1362. To state a claim for a violation of this provision, a plaintiff must plead facts showing the retroactive application of a new rule that “by its own terms” or through “practical implementation” creates a “significant risk” of extending the period of incarceration to which he is subject. Id. at 255, 120 S.Ct. 1362.
Assuming the Ex Post Facto Clause applies to the Board’s policy changes,6 the Inmates have failed to identify a new policy creating a significant risk of increased punishment. Their complaint identifies a variety of changes to parole review procedures, including the Board’s decisions to cease using a risk assessment *185 tool, to enlist parole examiners to perform interviews, and to vote electronically. But the Inmates have failed to plead facts showing a causal link between these procedural changes and a significant risk of extended punishment.
By their terms, these procedures do not impact the length of the Inmates’ period of imprisonment, so the Inmates must point to the implementation of the procedures. Although the Inmates complain that parole-grant rates have decreased since 1995, they have not alleged facts demonstrating that this decrease may be ascribed to any procedural change. The mere fact that the Board implemented these procedural changes during the same multi-year period that the rate decreased does not produce a plausible inference of a causal connection, particularly as there are numerous other explanations for the decreasing parole-grant rate. As the district court noted, some of this decrease may be understood to reflect the shrinking pool of eligible offenders, who the Board may have found to be less suitable for parole. More notably, the Inmates themselves press an alternative reason for the declining parole-grant rate: they urge that instead of following its statutory mandate to determine suitability for parole based on the multifarious factors identified in the Policy Manual, the Board has adopted a policy of refusing parole to violent offenders based solely on their offenses. And the complaint cites the Board’s procedural changes as evidence that the Board is disregarding other relevant factors.
It is this alleged policy change—the de facto abolition of discretionary parole—that is at the crux of the Inmates’ complaint. But, as discussed with respect to the Inmates’ due process claim, it is implausible based on the facts alleged that the Board has adopted any such policy. The factual allegations suggest that the Board has become harsher with respect to violent offenses, but they do not

Burnette v. Fahey, 687 F.3d 171 (2012)
indicate that the Board has implemented a de facto prohibition of parole for persons convicted of these offenses. In the absence of such facts, we cannot reasonably infer that the Board is failing to exercise its discretion as required by state law. See Garner, 529 U.S. at 256, 120 S.Ct. 1362.
Ultimately, the Inmates’ complaint supports, at most, the inference that the Board is exercising its discretion, but that, in doing so, the Board is taking a stricter view towards violent offenders than it had in the past. This shift in the manner in which it exercises its discretion, however, does not implicate the Ex Post Facto Clause. As the Sixth Circuit has explained, where the statutory scope of a parole board’s discretion is unchanged from the time a prisoner committed his offense, “there was always the possibility the Board would exercise its discretion in a way that would result in fewer paroles and longer prison terms.” Foster v. Booker, 595 F.3d 353, 362 (6th Cir.2010). Inmates may have some ex post facto-protected interest in the rules that guide and govern the exercise of discretion, see Garner, 529 U.S. at 253, 120 S.Ct. 1362, but they do not have a protected interest in the exercise of discretion itself. Thus, that the Board may have decided “to get tougher” on certain crimes “hardly amount[s] to an ex post facto violation” because “it was within the ... Board’s discretion to get tougher.” Foster, 595 F.3d at 362.
We should not and will not “micromanage[ ]” state parole systems through the Ex Post Facto Clause. Warren, 233 F.3d at 208 (quoting Garner, 529 U.S. at 252, 120 S.Ct. 1362) (internal quotation marks omitted). In the instant action, the Inmates have alleged facts indicating only that, in exercising its discretion, the Board has opted to adopt a harsher tack with *186 respect to violent offenders. This is not actionable.
IV.
We are sympathetic to the challenges faced by the Inmates in bringing these claims and the lack of information about the Board’s internal workings at their disposal. Nevertheless, they are not relieved of their obligation under the Iqbal-Twombly pleading standard to allege facts demonstrating a plausible, not merely possible, entitlement to relief. Because they have failed to meet this obligation, dismissal of the complaint was

appropriate. For this reason, we affirm the judgment of the district court.
AFFIRMED
GREGORY, Circuit Judge, dissenting:
The Court adheres today to a rigidly formalistic view of the Due Process Clause that provides no real protection for the well-established liberty interest Virginia inmates have in parole consideration. For this reason, I respectfully dissent.
I.
The majority and I are in agreement on several points. There is no independent due process right to parole, e.g., Greenholtz v. Inmates of the Neb. Penal & Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979), nor is there one in being considered for parole, Hill v. Jackson, 64 F.3d 163 (4th Cir.1995). However, a State can create such a liberty interest, id. at 170, and Virginia has done so here, vesting in its inmates a right to parole consideration through the passage of its parole statute, id. Finally, the Due Process Clause requires that the parole board (“the Board”) furnish an inmate with a written explanation for its denial of parole. E.g., Bloodgood v. Garraghty, 783 F.2d 470, 473 (4th Cir.1986); Franklin v. Shields, 569 F.2d 784, 800 (4th Cir.1978) (en banc).
The majority and I part ways on the question of whether the Due Process Clause provides any additional protections to inmates, like the Appellants, who have a liberty interest in parole consideration. While a hyper-literal interpretation of this Court’s precedent might suggest that nothing beyond a written explanation is required,1 we have never before held this to be the case,2 and we should not do so today.
While the majority cites to Franklin v. Shields, Bloodgood v. Garraghty, and Vann v. Angelone for the proposition that the Board need only furnish a written explanation for

Burnette v. Fahey, 687 F.3d 171 (2012)
denial, these cases contemplated the Board doing more than applying one factor to every case it hears. In Bloodgood we held that we “will not assume that the Board relied on possibly *187 invalid factors” in making its decisions. Bloodgood, 783 F.2d at 475. This of course presupposes that there are invalid factors—that the Due Process Clause requires not just a written explanation for the denial, but that the denial be based on valid factors. In Vann, we recognized that parole consideration consists of more than the rote application of a single factor: “Most parole decisions involve a considerable degree of discretion. Hence, parole authorities must investigate and weigh numerous factors including [the inmate’s] history, mental and physical condition, attitude, and compatibility with the ‘interests of society.’ ” Vann v. Angelone, 73 F.3d 519 (4th Cir.1996) (quoting Gaston v. Taylor, 946 F.2d 340, 344 (4th Cir.1991)). Similarly, in Bloodgood we said, “The board’s inquiry is not the legal foundation of some past conviction, but a prediction of a prisoner’s prospects for a law-abiding life.” Bloodgood, 783 F.2d at 473 (citing Franklin, 569 F.2d at 800). Thus we have implied that the Board must consider at least some factors beyond the nature of the offense.
I emphasize the distinction between the question of whether a factor is valid and whether it is sufficient. The nature and circumstances of the underlying offense is indisputably a legitimate factor that may be considered, but it is not enough standing alone. The Due Process Clause requires that the Board consider additional factors as well. Whether the Due Process Clause requires that specific additional factors be considered, it is enough here to note that the Board and the State of Virginia have substantial discretion in determining how it will weigh the factors in making the final decision whether to grant parole. But to hold that the rote use of the nature of the underlying offense by itself is sufficient transmogrifies the parole process into an empty formality.
II.
The Appellants’ complaint alleges facts that render plausible the inference that the Board only considers the nature and circumstances of the crime in deciding whether to grant or deny them parole. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Appellants allege that after Virginia’s General

Assembly abolished parole for all newly incarcerated inmates in 1995, the Board instituted a number of changes to its procedures. Prior to 1995, the Board used a risk assessment tool in making parole determinations; but after the abolition of parole the Board discontinued use of the tool. J.A. 21. The Board has also abandoned its practice of conducting face-to-face interviews with parole-eligible inmates. J.A. 23. It has similarly discouraged wardens, guards, and other prison officials from providing it with information about eligible inmates, J.A. 23, and has decreased the frequency with which inmates’ families appear before it, J.A. 24. The Board no longer meets in person regularly, but instead circulates electronic files and has its members cast votes to grant or deny parole electronically. J.A. 23–24. Virginia law requires the Board to establish rules to govern parole procedure. VA CODE § 53.1–136.1. While these used to be published in the Virginia Administrative Code, 14 Va. Reg. No. 17 at 2457 (Apr. 22, 1998), in 1998 the Board repealed those policies and has not replaced them; instead, it has adopted an informal “policy manual.” J.A. 22. Perhaps most tellingly, the policy manual lists fourteen factors the Board is to consider in determining whether to grant parole, with rehabilitative concerns featuring prominently among them. J.A. 22. Nevertheless, the Appellants were denied parole in the vast majority of cases for one and only one reason—the *188 nature and circumstances of the underlying offense. J.A. 22.3 The majority asserts that the Appellants have offered “only speculation in support of [their] view” that they are not being considered for parole. Maj. op. at 182–83. However, these significant procedural changes, taken together, strongly suggest the Board has systematically eliminated the procedures that would have furnished it with information beyond the nature and circumstances of the underlying offense. These allegations are sufficient to surmount the relatively low burden of surviving a 12(b)(6) motion to dismiss.
It is true that on rare occasions the Board gave a reason other than the nature and circumstances of the offense in denying some of the Appellants parole. But for each Appellant, the Board has relied on the nature and circumstances of the offense, and no other factor, on at least one occasion. Thus, assuming there is a constitutional violation when the Board fails to consider any other reason, see supra Part II, each Appellant has suffered a constitutional injury on multiple occasions.

Burnette v. Fahey, 687 F.3d 171 (2012)

III.

comply with this requirement. As such, I would vacate the

district court’s 12(b)(6) dismissal and remand for further

“Fundamental fairness [is] the touchstone of due process.”

proceedings.

Gagnon v. Scarpelli, 411 U.S. 778, 790, 93 S.Ct. 1756, 36

L.Ed.2d 656 (1973). In my view, fundamental fairness in

All Citations

the parole context requires at a minimum that the Board

consider at least one factor beyond the nature of the

687 F.3d 171

underlying offense. The facts in the Appellants’ complaint

make out a plausible claim that the Board has failed to

Footnotes

1

Discretionary parole is distinct from mandatory parole, a program under which a prisoner must be released on

parole six months prior to the final release date prescribed by his sentence. See Va.Code Ann. § 53.1–159. The 1994

legislative changes did not affect the availability of mandatory parole. In this opinion, the term “parole” denotes

discretionary parole unless otherwise specified.

2

Appellants sought to represent a class of similarly situated individuals, but the district court had not yet certified a

class at the time it dismissed the complaint.

3

This is true for Burnette (twelve denials), Burroughs (seven denials), Conquest (twenty-two denials), Hoffman

(fourteen denials), King (seven denials), Macon (eighteen denials), Purdue (ten denials), and Tabor (eleven denials).

4

That the Board has abandoned procedures, including a risk assessment tool and in-person interviews by Board

members, which the Inmates assert would assist in the consideration of these other factors also fails to prove that it

is considering only the offense itself. For example, the Board may consider a prisoner’s prior criminal record and

institutional history without these tools. And that its procedures may have become more technologically and

electronically based does not indicate that the Board’s review lacks substance.

5

The dissent urges that we have adopted a hyperliteral interpretation of our due process precedent that would

permit, for example, the Board to deny parole to all eligible inmates using a form letter citing the nature and

circumstances of the offense. Post at 186 & n. 1. With respect, we note that we have done nothing of the sort. We

merely find that our precedent dictates that the Inmates have no due process right to the specific procedures the

Board has altered or eliminated since 1994.

6. In regard to the Inmates’ assertion that the Board is failing to exercise discretion and is considering only the

offense, without looking to other factors, in deciding to deny parole, we reject this claim because the Inmates have

failed to allege adequate facts establishing that the Board is doing so. As explained above, we, unlike the dissent, do

not think that the allegations regarding the Board’s procedural changes combined with the denial of parole to these

plaintiffs create a plausible—rather than merely possible—inference that the Board is looking at only one factor,

particularly in light of the discordant implications of the statistical allegations. Thus, we have no occasion in this case

to consider whether and to what extent Virginia law creates a right, protected under the Due Process Clause, to the

consideration of multiple factors in parole determinations.

6

As we observed in Warren, the Ex Post Facto Clause, by its text, applies only to “laws.” 233 F.3d at 207. Accordingly,

we have limited its scope to enactments of the legislature and to “legislative rules,” i.e., rules promulgated by

administrative agencies pursuant to a delegation of legislative authority. See United States v. Ellen, 961 F.2d 462,

465 (4th Cir.1992). We have found that administrative policies that merely articulate an agency’s interpretation of a

statute, however, are not subject to the ex post facto limitation. See id. Accordingly, in Warren, we concluded that

Burnette v. Fahey, 687 F.3d 171 (2012)

where a state parole board “made a policy decision that was within the parameters of existing state law,” no cause of action could arise under the Ex Post Facto Clause. 233 F.3d at 208 (assessing a new policy of the Virginia Parole Board). The Inmates contend that we abandoned this distinction in United States v. Lewis, 606 F.3d 193 (4th Cir.2010), in which we found an ex post facto violation due to the retroactive application of a new version of the Federal Sentencing Guidelines, notwithstanding the Guidelines’ discretionary nature. They cite our statement in Lewis that, in Garner v. Jones, “the Supreme Court ‘foreclosed [a] categorical distinction between a measure with the force of law,’ on the one hand, and discretionary guidelines, on the other.” Id. at 202 (alteration in original) (quoting Fletcher v. Reilly, 433 F.3d 867, 876 (D.C.Cir.2006)). But in Lewis we further recognized the unique role of the Sentencing Guidelines, which, although not “facially binding,” function as “the starting point and the initial benchmark” in federal sentencing. Id. at 200 & n. 8 (quoting Gall v. United States, 552 U.S. 38, 49, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)) (internal quotation marks omitted). In addition, our decision in Warren postdated that of the Supreme Court in Garner. Garner, 529 U.S. 244, 120 S.Ct. 1362 (decided Mar. 28, 2000); Warren, 233 F.3d 204 (decided Nov. 13, 2000). And we recently reiterated the distinction between a mere change to an administrative policy in effect at the time of the original offense and the retroactive application of a new statutory or regulatory rule. See Waddell v. Dep’t of Corr., 680 F.3d 384, 396 (4th Cir.2012) (agreeing with the state court that the petitioner’s ex post facto claim lacked merit because “no legislative or regulatory enactment ever altered” his sentence). We are therefore disinclined to find that Lewis upset our holding in Warren regarding the applicability of the Ex Post Facto Clause to the Board’s policies. But even assuming, as we do here, that the Clause applies to changes to the Board’s policies and procedures, the Inmates have failed to allege sufficient facts to establish plausibly that a new Board policy—as opposed to a mere change in the manner in which the Board exercises its discretion—has produced a substantial risk of increased punishment. Accordingly, we need not fully explore which, if any, of the Board’s changes are subject to the ex post facto limitation.

1

This interpretation is both hyper-literal and leads to absurd results. Suppose the Due Process Clause mandates only

that the Board furnish a written explanation for its denial. If that were so, then the Board could simply print out

several hundred copies of a form letter denying parole on generic grounds (for example, “the nature and

circumstances of the offense”) and send them out to each inmate as he or she comes up for consideration—all

without ever looking at the inmate’s file. Such a formalistic view of the Due Process Clause cannot be countenanced.

2

In Strader v. Troy, 571 F.2d 1263, 1266 (4th Cir.1978), we held that the Board may not consider previous convictions

if they were obtained in violation of the inmate’s right to counsel. While there the Sixth Amendment operated as an

independent constraint on the Board, Strader nevertheless demonstrates that the Constitution imposes additional

requirements beyond a written explanation.

3

For example, Sharon Burnette has been denied parole 12 times, and the sole reason given on each occasion was the

“serious nature and circumstances of the crime” or words to that effect. J.A. 30–31. Edward Conquest has been

denied parole 22 times, all for the same reason. J.A. 32.

 
 Case: 3:10-cv-70 As of: 11/18/2019 04:50 PM EST 1 of 10
U.S. District Court Eastern District of Virginia − (Richmond) CIVIL DOCKET FOR CASE #: 3:10−cv−00070−REP

CLOSED

Burnette et al v. Fahey et al Assigned to: District Judge Robert E. Payne Case in other court: 11−01324 Cause: 42:1983 Prisoner Civil Rights
Plaintiff
Sharon Burnette

Date Filed: 02/03/2010 Date Terminated: 10/25/2010 Jury Demand: None Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question
represented by Stephen Atherton Northup Troutman Sanders LLP (Richmond) Troutman Sanders Bldg 1001 Haxall Point PO Box 1122 Richmond, VA 23219 (804) 697−1200 Email: steve.northup@troutmansanders.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Abigail Turner Legal Aid Justice Center (Charlottesville) 1000 Preston Avenue Suite A Charlottesville, VA 22903 434−977−0553 Fax: 434−977−0558 Email: abigail@justice4all.org ATTORNEY TO BE NOTICED
Alex Ross Gulotta Virginia Justice Center for Farm & Immigrant Workers 1000 Preston Ave Suite A Charlottesville, VA 22903 (434) 977−0553 Email: alex@justice4all.org ATTORNEY TO BE NOTICED
Gail Starling Marshall Legal Aid Justice Center (Charlottesville) 1000 Preston Avenue Suite A Charlottesville, VA 22903 434−977−0553 ATTORNEY TO BE NOTICED
Robert Armistead Angle Troutman Sanders LLP (Richmond) Troutman Sanders Bldg 1001 Haxall Point PO Box 1122 Richmond, VA 23219 (804) 697−1246 Email: robert.angle@troutmansanders.com ATTORNEY TO BE NOTICED
William Rowland Richardson , Jr. 2674 Marcey Road

Case: 3:10-cv-70 As of: 11/18/2019 04:50 PM EST 2 of 10

Arlington, VA 22207 703−447−8328 Fax: 703−525−5270 Email: wrr2674@verizon.net TERMINATED: 12/02/2010 ATTORNEY TO BE NOTICED

Plaintiff Pamela K. Burroughs

represented by Stephen Atherton Northup (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Abigail Turner (See above for address)

Alex Ross Gulotta (See above for address) ATTORNEY TO BE NOTICED

Gail Starling Marshall (See above for address)

Robert Armistead Angle (See above for address) ATTORNEY TO BE NOTICED

William Rowland Richardson , Jr. (See above for address) TERMINATED: 12/02/2010

Plaintiff Frank Carter, Jr.

represented by Stephen Atherton Northup (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Abigail Turner (See above for address)

Alex Ross Gulotta (See above for address) ATTORNEY TO BE NOTICED

Gail Starling Marshall (See above for address)

Robert Armistead Angle (See above for address) ATTORNEY TO BE NOTICED

William Rowland Richardson , Jr. (See above for address) TERMINATED: 12/02/2010

Plaintiff Edward Conquest

represented by Stephen Atherton Northup (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Abigail Turner (See above for address)

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Plaintiff Donald W. Hoffman
Plaintiff Monty King formerly known as Imond Monty Hicks

Alex Ross Gulotta (See above for address) ATTORNEY TO BE NOTICED
Gail Starling Marshall (See above for address)
Robert Armistead Angle (See above for address) ATTORNEY TO BE NOTICED
William Rowland Richardson , Jr. (See above for address) TERMINATED: 12/02/2010
represented by Stephen Atherton Northup (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Abigail Turner (See above for address)
Alex Ross Gulotta (See above for address) ATTORNEY TO BE NOTICED
Gail Starling Marshall (See above for address)
Robert Armistead Angle (See above for address) ATTORNEY TO BE NOTICED
William Rowland Richardson , Jr. (See above for address) TERMINATED: 12/02/2010
represented by Stephen Atherton Northup (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Abigail Turner (See above for address)
Alex Ross Gulotta (See above for address) ATTORNEY TO BE NOTICED
Gail Starling Marshall (See above for address)
Robert Armistead Angle (See above for address) ATTORNEY TO BE NOTICED
William Rowland Richardson , Jr. (See above for address) TERMINATED: 12/02/2010

Case: 3:10-cv-70 As of: 11/18/2019 04:50 PM EST 4 of 10

Plaintiff Larry Macon
Plaintiff Marvin McClain
Plaintiff Benjamin Perdue, Jr.

represented by Stephen Atherton Northup (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Abigail Turner (See above for address)
Alex Ross Gulotta (See above for address) ATTORNEY TO BE NOTICED
Gail Starling Marshall (See above for address) ATTORNEY TO BE NOTICED
Robert Armistead Angle (See above for address) ATTORNEY TO BE NOTICED
William Rowland Richardson , Jr. (See above for address) TERMINATED: 12/02/2010
represented by Stephen Atherton Northup (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Abigail Turner (See above for address)
Alex Ross Gulotta (See above for address) ATTORNEY TO BE NOTICED
Gail Starling Marshall (See above for address)
Robert Armistead Angle (See above for address) ATTORNEY TO BE NOTICED
William Rowland Richardson , Jr. (See above for address) TERMINATED: 12/02/2010
represented by Stephen Atherton Northup (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Abigail Turner (See above for address)
Alex Ross Gulotta (See above for address) ATTORNEY TO BE NOTICED

Case: 3:10-cv-70 As of: 11/18/2019 04:50 PM EST 5 of 10

Gail Starling Marshall (See above for address)

Robert Armistead Angle (See above for address) ATTORNEY TO BE NOTICED

William Rowland Richardson , Jr. (See above for address) TERMINATED: 12/02/2010

Plaintiff Henry Stump

represented by Stephen Atherton Northup (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Abigail Turner (See above for address)

Alex Ross Gulotta (See above for address) ATTORNEY TO BE NOTICED

Gail Starling Marshall (See above for address)

Robert Armistead Angle (See above for address) ATTORNEY TO BE NOTICED

William Rowland Richardson , Jr. (See above for address) TERMINATED: 12/02/2010

Plaintiff
Barbara Tabor Suing on behalf of themselves and all others similarly situated

represented by Stephen Atherton Northup (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Abigail Turner (See above for address)

Alex Ross Gulotta (See above for address) ATTORNEY TO BE NOTICED

Gail Starling Marshall (See above for address)

Robert Armistead Angle (See above for address) ATTORNEY TO BE NOTICED

William Rowland Richardson , Jr. (See above for address) TERMINATED: 12/02/2010

Defendant
Helen F. Fahey In her capacity as Chair of the Virginia Parole Board

represented by Richard Carson Vorhis Office of the Attorney General (Richmond) 202 North 9th Street

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Richmond, VA 23219 (804) 786−4805 Fax: (/804) 786−4239 Email: rvorhis@oag.state.va.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Carol Ann Sievers In her capacity as Vice−Chair of the Virginia Parole Board

represented by Richard Carson Vorhis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Jackie T. Stump In his capacity as a Member of the Virginia Parole Board

represented by Richard Carson Vorhis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Michael M. Hawes In his capacity as a Member of the Virginia Parole Board

represented by Richard Carson Vorhis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Rudolph C. McCollum, Jr. In his capacity as a Member of the Virginia Parole Board

represented by Richard Carson Vorhis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant
John R. Lay TERMINATED: 10/25/2010 also known as John Robert Lay TERMINATED: 10/25/2010

represented by John R. Lay 1084578 / 367680 Nottoway Correctional Center P.O. Box 488 Burkeville, VA 23922 PRO SE

Movant William L. A. Church

represented by William L. A. Church 939047 Oklahoma Department of Corrections Rt. 1, Box 8 Helena, OK 73741−9606 PRO SE

Date Filed 02/03/2010
02/03/2010 02/04/2010

# Docket Text
1 COMPLAINT filed by Frank Carter, Jr, Edward Conquest, Sharon Burnette, Donald W. Hoffman, Monty King, Larry Macon, Marvin McClain, Benjamin Perdue, Jr., Henry Stump, Barbara Tabor, and Pamela K. Burroughs AGAINST all defendants. Filing Fee $ 350; Receipt Number 34683006993.) (Attachments: # 1 Civil Cover Sheet, and # 2 Receipt)(lhin, ) (Entered: 02/03/2010)
2 Summons Issued as to Helen F. Fahey, Carol Ann Sievers, Jackie T. Stump, Michael M. Hawes, and Rudolph C. McCollum, Jr. (Counsel to pick up summons for service). (lhin, ) (Entered: 02/03/2010)
Remark − "Cause of Action" changed from 28:1391 Personal Injury to 42:1983 Prisoner Civil Rights. "Nature of Suit" changed from 440 Civil Rights: Other to 550

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03/01/2010 03/01/2010 03/15/2010 03/18/2010
03/23/2010
03/26/2010 03/29/2010 03/30/2010 04/20/2010 04/26/2010 04/27/2010 05/06/2010 05/11/2010
05/26/2010 05/26/2010

Prisoner: Civil Rights (tdai, ) (Entered: 02/04/2010)
3 MOTION to Dismiss by Helen F. Fahey, Carol Ann Sievers, Jackie T. Stump, Michael M. Hawes, Rudolph C. McCollum, Jr. (Vorhis, Richard) (Entered: 03/01/2010)
4 Memorandum in Support re 3 MOTION to Dismiss filed by Helen F. Fahey, Carol Ann Sievers, Jackie T. Stump, Michael M. Hawes, Rudolph C. McCollum, Jr. (Vorhis, Richard) (Entered: 03/01/2010)
5 Memorandum in Opposition re 3 MOTION to Dismiss filed by Sharon Burnette, Pamela K. Burroughs, Frank Carter, Jr, Edward Conquest, Donald W. Hoffman, Monty King, Larry Macon, Marvin McClain, Benjamin Perdue, Jr, Henry Stump, Barbara Tabor. (Northup, Stephen) (Entered: 03/15/2010)
6 Response to 5 Memorandum in Opposition, filed by Helen F. Fahey, Michael M. Hawes, Rudolph C. McCollum, Jr, Carol Ann Sievers, Jackie T. Stump. (Attachments: # 1 Unpublished Opinion − Patterson v. Kaine, # 2 Unpublished Opinion − Bowling v. Johnson, # 3 Unpublished Opinion − Williams v. Johnson, # 4 Unpublished Opinion − Lyons v. U.S. Parole Comm.)(Vorhis, Richard) (Entered: 03/18/2010)
7 MOTION for Leave to File Surreply Memorandum in Opposition to Motion to Dismiss by Sharon Burnette, Pamela K. Burroughs, Frank Carter, Jr, Edward Conquest, Donald W. Hoffman, Monty King, Larry Macon, Marvin McClain, Benjamin Perdue, Jr, Henry Stump, Barbara Tabor. (Attachments: # 1 Exhibit)(Northup, Stephen) (Entered: 03/23/2010)
8 MOTION for Joinder by John R. Lay. (Attachments: # 1 Cover Letter, # 2 Envelope)(tdai, ) (Entered: 03/26/2010)
9 ORDER GRANTING Plaintiffs' 7 Motion for Leave to File Surreply Memorandum in Opposition to Motion to Dismiss; It is further Ordered that the plaintiffs shall file their surreply forthwith. Signed by District Judge Robert E. Payne on 3/29/2010. (lhin, ) (Entered: 03/29/2010)
10 Response Surreply Memorandum in Opposition to Motion to Dismiss filed by Sharon Burnette, Pamela K. Burroughs, Frank Carter, Jr, Edward Conquest, Donald W. Hoffman, Monty King, Larry Macon, Marvin McClain, Benjamin Perdue, Jr, Henry Stump, Barbara Tabor. (Northup, Stephen) (Entered: 03/30/2010)
Set/Reset Hearings: Motion Hearing set for 5/11/2010 at 10:00 AM before District Judge Robert E. Payne. (sneal, ) (Entered: 04/20/2010)
11 Notice of Hearing Date set for 05/11/2010 re 3 MOTION to Dismiss (Vorhis, Richard) (Entered: 04/26/2010)
12 CERTIFICATE of Service (Amended) re 11 Notice of Hearing Date by Richard Carson Vorhis on behalf of Helen F. Fahey, Michael M. Hawes, Rudolph C. McCollum, Jr, Carol Ann Sievers, Jackie T. Stump (Vorhis, Richard) (Entered: 04/27/2010)
13 ORDER re hearing on 3 MOTION to Dismiss scheduled for May 11, 2010 at 10:00 a.m. is RESCHEDULED to May 11, 2010 at 11:00 a.m. Signed by District Judge Robert E. Payne on 5/6/2010. (lhin, ) (Entered: 05/06/2010)
14 Minute Entry for proceedings held before District Judge Robert E. Payne: Motion Hearing held on 5/11/2010 re 3 MOTION to Dismiss filed by Carol Ann Sievers, Rudolph C. McCollum, Jr., Jackie T. Stump, Michael M. Hawes, Helen F. Fahey; matter submitted to court; opinion to enter (Court Reporter Peppy Strahan, OCR.) (wtuc) (Entered: 05/11/2010)
15 MOTION for Leave to File Limited Discovery by Sharon Burnette, Pamela K. Burroughs, Frank Carter, Jr, Edward Conquest, Donald W. Hoffman, Monty King, Larry Macon, Marvin McClain, Benjamin Perdue, Jr, Henry Stump, Barbara Tabor. (Northup, Stephen) (Entered: 05/26/2010)
16 Memorandum in Support re 15 MOTION for Leave to File Limited Discovery Prior to a Rule 26(f) Conference filed by Sharon Burnette, Pamela K. Burroughs, Frank Carter, Jr, Edward Conquest, Donald W. Hoffman, Monty King, Larry Macon, Marvin McClain, Benjamin Perdue, Jr, Henry Stump, Barbara Tabor. (Attachments: # 1

Case: 3:10-cv-70 As of: 11/18/2019 04:50 PM EST 8 of 10

06/09/2010 06/09/2010 06/09/2010 06/28/2010 10/25/2010 10/25/2010
10/25/2010 10/28/2010 10/28/2010 11/12/2010 11/22/2010 11/22/2010 12/02/2010 12/07/2010 12/07/2010

Exhibit)(Northup, Stephen) (Entered: 05/26/2010)
17 Opposition to 15 MOTION for Leave to File Limited Discovery filed by Helen F. Fahey, Michael M. Hawes, Rudolph C. McCollum, Jr, Carol Ann Sievers, Jackie T. Stump. (Vorhis, Richard) Modified filer text from Henry Stump to Jackie T. Stump on 6/9/2010 (tdai, ). (Entered: 06/09/2010)
18 Memorandum in Support re 15 MOTION for Leave to File Limited Discovery filed by Helen F. Fahey, Michael M. Hawes, Rudolph C. McCollum, Jr, Carol Ann Sievers, Jackie T. Stump. (Vorhis, Richard) (Entered: 06/09/2010)
Notice of Correction re 17 Opposition. Henry Stump removed and replaced by Jackie T. Stump as part filer to 17 Opposition. The docket has been corrected. No further action is required. (tdai, ) (Entered: 06/09/2010)
19 LETTER from chambers dated June 25, 2010 re Letter RECEIVED from Elvira M. Grasty. (lhin, ) (Entered: 06/28/2010)
20 *** AMENDED IN PART. SEE 22 ORDER *** MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 10/25/2010. (lhin, ) Modified text on 11/18/2010 (tdai, ). (Entered: 10/25/2010)
21 *** AMENDED IN PART. SEE 23 ORDER *** ORDER DENYING 3 Motion to Dismiss; DENYING John R. Lay's 8 Motion for Joinder as Party Petitioner/Plaintiff; DENYING Plaintiff's 15 Motion for Leave to Conduct Limited Discovery Prior to a Rule 26(f) Conference; and the action is DISMISSED WITH PREJUDICE. Signed by District Judge Robert E. Payne on 10/25/2010. Copies sent to John R. Jay as directed. (lhin, ) Modified text on 11/18/2010 (tdai, ). (Entered: 10/25/2010)
Case Dismissed Per Order dated 10/25/2010. (lhin, ) (Entered: 11/12/2010)
22 ORDER that the 20 Memorandum Opinion is AMENDED to correct the second sentence in the first full paragraph on page 28 to read: "Therefore, the MOTION TO DISMISS (Docket No. 3) will be GRANTED." Signed by District Judge Robert E. Payne on 10/27/2010. Copies mailed. (lhin, ) (Entered: 10/28/2010)
23 ORDER: It is hereby ORDERED that the Order (Docket No. 21) is AMENDED to correct paragraph (1) to read: "The MOTION TO DISMISS (Docket No. 3) is GRANTED." Signed by District Judge Robert E. Payne on 10/27/2010. Copies mailed. (lhin, ) (Entered: 10/28/2010)
24 MOTION to Withdraw as Attorney by Sharon Burnette, Pamela K. Burroughs, Frank Carter, Jr, Edward Conquest, Donald W. Hoffman, Monty King, Larry Macon, Marvin McClain, Benjamin Perdue, Jr, Henry Stump, Barbara Tabor. (Richardson, William) (Entered: 11/12/2010)
25 MOTION to Alter Judgment by Sharon Burnette, Pamela K. Burroughs, Frank Carter, Jr, Edward Conquest, Donald W. Hoffman, Monty King, Larry Macon, Marvin McClain, Benjamin Perdue, Jr, Henry Stump, Barbara Tabor. (Northup, Stephen) (Entered: 11/22/2010)
26 Memorandum in Support re 25 MOTION to Alter Judgment Pursuant to Rule 59(E) filed by Sharon Burnette, Pamela K. Burroughs, Frank Carter, Jr, Edward Conquest, Donald W. Hoffman, Monty King, Larry Macon, Marvin McClain, Benjamin Perdue, Jr, Henry Stump, Barbara Tabor. (Northup, Stephen) (Entered: 11/22/2010)
27 ORDER GRANTING 24 MOTION to Withdraw William R. Richardson, Esquire as counsel for the plaintiffs. Signed by District Judge Robert E. Payne on 12/1/2010. (lhin, ) (Entered: 12/02/2010)
28 (FILED IN ERROR) Opposition To Plaintiff's Motion To Alter Or Amend Judgment Pursuant to Rule 59(e) filed by Helen F. Fahey, Michael M. Hawes, Rudolph C. McCollum, Jr, Carol Ann Sievers, Jackie T. Stump. (Vorhis, Richard) Modified on 12/7/2010 (lhin, ). (Entered: 12/07/2010)
29 MOTION In Opposition To Plaintiff's Motion To Alter Or Amend Judgment Pursuant To Rule 59(e) by Helen F. Fahey, Michael M. Hawes, Rudolph C. McCollum, Jr, Carol Ann Sievers, Jackie T. Stump. (Vorhis, Richard) (Entered: 12/07/2010)

Case: 3:10-cv-70 As of: 11/18/2019 04:50 PM EST 9 of 10

12/07/2010 12/13/2010 01/26/2011 01/26/2011 03/01/2011 03/01/2011
03/30/2011
04/01/2011 04/04/2011 04/12/2011 04/12/2011
04/13/2011 07/10/2012 07/10/2012

30 Memorandum in Support re 29 MOTION In Opposition To Plaintiff's Motion To Alter Or Amend Judgment Pursuant To Rule 59(e) filed by Helen F. Fahey, Michael M. Hawes, Rudolph C. McCollum, Jr, Carol Ann Sievers, Jackie T. Stump. (Vorhis, Richard) (Entered: 12/07/2010)
31 RESPONSE in Support re 25 MOTION to Alter Judgment Pursuant to Rule 59(E) filed by Sharon Burnette, Pamela K. Burroughs, Frank Carter, Jr, Helen F. Fahey, Donald W. Hoffman, Monty King, Larry Macon, Marvin McClain, Benjamin Perdue, Jr, Henry Stump, Barbara Tabor. (Northup, Stephen) (Entered: 12/13/2010)
32 MOTION for Joinder "to be added to this class action" by William L. A. Church. (Attachments: # 1 Cover Letter, # 2 Envelope)(tdai, ) (Entered: 01/27/2011)
33 MOTION for permission to file for injunctive relief for an identification hearing among other injunctive relief by William L. A. Church. (Attachments: # 1 Cover Letter, # 2 Envelope)(tdai, ) (Entered: 01/27/2011)
34 MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 3/1/2011. (lhin, ) (Entered: 03/01/2011)
35 ORDER DENYING 25 Plaintiff's Motion to Alter Judgment; GRANTING 29 defendant's Motion in opposition to the Motion to Alter Judgment; DENYING 32 William Church's Motion to be Added to this Class Action; DENYING 33 Motion for Permission to File for Injunctive Relief; plaintiff may file a written notice of appeal within thirty (30) days of the date hereof. Signed by District Judge Robert E. Payne on 3/1/2011. Copies sent to counsel of record as directed. (lhin, ) (Entered: 03/01/2011)
36 NOTICE OF APPEAL as to 35 Order on Motion to Alter Judgment, Order on Motion for Miscellaneous Relief, Order on Motion for Joinder, 21 Order, 23 Order by Sharon Burnette, Pamela K. Burroughs, Frank Carter, Jr, Edward Conquest, Donald W. Hoffman, Monty King, Larry Macon, Marvin McClain, Benjamin Perdue, Jr, Henry Stump, Barbara Tabor. (Luck, Robert) Modified docket text on 3/30/2011 (jtho, ). (Entered: 03/30/2011)
37 Transmission of Notice of Appeal to US Court of Appeals re 36 Notice of Appeal, (All case opening forms, plus the transcript guidelines, may be obtained from the Fourth Circuit's website at www.ca4.uscourts.gov) (jgra, ) (Main Document 37 replaced on 4/4/2011) (jgra, ). (Entered: 04/01/2011)
38 USCA Appeal Fees received $ 455, receipt number 34683012309, re 36 Notice of Appeal, filed by Barbara Tabor, Frank Carter, Jr., Edward Conquest, Henry Stump, Sharon Burnette, Marvin McClain, Larry Macon, Pamela K. Burroughs, Monty King, Benjamin Perdue, Jr., Donald W. Hoffman. (cmcc, ) (Entered: 04/04/2011)
USCA Case Number 11−1324, Cyndi Halupa, case manager for 36 Notice of Appeal, filed by Barbara Tabor, Frank Carter, Jr., Edward Conquest, Henry Stump, Sharon Burnette, Marvin McClain, Larry Macon, Pamela K. Burroughs, Monty King, Benjamin Perdue, Jr., Donald W. Hoffman. (jgra, ) (Entered: 04/12/2011)
39 TRANSCRIPT of proceedings for dates of May 11, 2010, before Judge Robert E. Payne, re 36 Notice of Appeal, Court Reporter Peppy Peterson, Telephone number 804−916−2267. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 5/12/2011. Redacted Transcript Deadline set for 6/13/2011. Release of Transcript Restriction set for 7/11/2011.(peterson, peppy) Modified on 5/3/2011 to edit. (cmcc, ). (Entered: 04/12/2011)
40 Notice of Filing of Official Transcript filed on 4/12/2011 (Document # 39 ). (lhin, ) (Entered: 04/13/2011)
41 Opinion of USCA, AFFIRMED the District Court ruling re 36 Notice of Appeal, attached copy of judgment will not take effect until issuance of the mandate. (jgra, ) (Entered: 07/10/2012)
42 USCA JUDGMENT, AFFIRMED the judgment of the District Court as to 36 Notice of Appeal, filed by Barbara Tabor, Frank Carter, Jr., Edward Conquest, Henry Stump, Sharon Burnette, Marvin McClain, Larry Macon, Pamela K. Burroughs, Monty King,

Case: 3:10-cv-70 As of: 11/18/2019 04:50 PM EST 10 of 10

07/24/2012 11/15/2012
11/26/2012

Benjamin Perdue, Jr., Donald W. Hoffman (jgra, ) (Entered: 07/10/2012)
43 USCA Stay of Mandate, mandate stayed under Fed. R. App. P. 41 (d)(1) until disposition of the petition or motion re 36 Notice of Appeal, (jgra, ) (Entered: 07/24/2012)
44 Published ORDER of USCA as to 36 Notice of Appeal, filed by Barbara Tabor, Frank Carter, Jr., Edward Conquest, Henry Stump, Sharon Burnette, Marvin McClain, Larry Macon, Pamela K. Burroughs, Monty King, Benjamin Perdue, Jr., Donald W. Hoffman : The petition for rehearing is denied, and, because the poll on rehearing en banc failed to produce a majority of judges in active service in favor of rehearing en banc, the petition for rehearing en banc is also denied. (lbre, ) (Entered: 11/19/2012)
45 USCA Mandate, judgment of this court, entered 07/09/12, takes effect 11/26/12 re 36 Notice of Appeal, (jgra, ) (Entered: 11/26/2012)