PUBLISHED

Filed: November 15, 2012

UNITED STATES COURT OF APPEALS

FOR THE 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 PERDUE, 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 No. 11-1324

Chair of the Virginia Parole  (3:10-cv-00070-

Board; CAROL REP) 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. 

O R D E R

Appellants have filed a petition for rehearing and rehearing

en banc. Appellees have filed a response in opposition to the

petition.

Judge Niemeyer and Judge Floyd voted to deny the petition

for rehearing. Judge Gregory voted to grant the petition for

rehearing.

A member of the court requested a poll on the petition for

rehearing en banc. Judge Gregory voted to grant rehearing en

banc. Chief Judge Traxler and Judges Wilkinson, Niemeyer,

Motz, King, Shedd, Duncan, Agee, Davis, Keenan, Wynn,

Diaz, Floyd, and Thacker voted to deny rehearing en banc. 

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. Judge Gregory filed an opinion dissenting from the denial of rehearing en banc. 

Entered at the direction of Judge Floyd for the court.

For the Court

/s/ Patricia S. Connor, Clerk

2 BURNETTE v. FAHEY
GREGORY, Circuit Judge, dissenting from the denial of

rehearing en banc:

The Court was called upon to determine what process is

due to inmates who have been granted a constitutionally protected liberty interest to be considered for parole. This Court’s

precedent offers unclear answers, leaving potential parolees’

Due Process rights woefully unsettled. Perhaps more important, Virginia’s parole system, as alleged by Appellants, is

fundamentally unfair to those being considered for parole.

Because this case poses a "question of exceptional importance," Fed. R. App. P. 35(a)(2), I respectfully dissent from

my colleagues’ decision to deny rehearing en banc.

I.

As my original dissent makes clear, this Court’s precedent

is ambiguous as to what process must be afforded to paroleeligible inmates. See 687 F.3d 171, 186-88 (4th Cir. 2012)

(Gregory, J., dissenting). The majority’s opinion further

obfuscates our precedent. In Vann v. Angelone, we held "[a]t

most," the parole board must furnish "a statement of its reasons for denial of parole." 73 F.3d 519, 522 (4th Cir. 1996)

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

1978) (en banc)). The Vann Court qualified this holding, however, by asserting "parole authorities must investigate and

weigh numerous factors" in reaching their decision. Vann, 73

F.3d at 521-22 (citing Gaston v. Taylor, 946 F.2d 340, 344

(4th Cir. 1991)). And a decade before Vann, we held in

Bloodgood v. Garraghty that "[t]he 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." 783 F.2d 470,

473 (4th Cir. 1986) (citing Franklin, 569 F.2d at 800).

Both Vann and Bloodgood clearly require the parole board

to do more than issue a rote letter of denial. The majority,

however, conveniently cherry-picked a sentence from Vann in

concluding Appellants cannot prove a constitutional injury

BURNETTE v. FAHEY 3
because "the Board provided a reason or reasons for its denial

[of parole]." 687 F.3d at 182. The majority’s interpretation of

Vann allows the parole board to "simply print out several hundred copies of a form letter denying parole on generic

grounds." 687 F.3d at 186 n.1 (Gregory, J., dissenting). The

majority opinion exacerbates the tension in our case law and

the Court’s refusal to resolve this issue perpetuates the potential for constitutional injustice.

II.

While Iqbal and Twombly most certainly heightened the

pleading requirements of Fed. R. Civ. P. 8, they did not provide the Court carte blanche to shirk its duty to resolve

important constitutional questions. The majority insists

Appellants do not state a plausible claim because "the statistical allegations show that the Board continues to grant parole

to violent offenders . . . indicat[ing] that the Board was making individual determinations." 687 F.3d at 182. The majority’s logic is deeply flawed.

While Appellants’ allegations may tend to show that the

parole board made individual determinations for a small number of violent offenders, it does not necessarily follow that the

parole board made individual determinations for all violent

offenders, most importantly the Appellants. This is not a class

action suit; Appellants are attempting to redress their individual constitutional grievances. They are therefore not required

to show that in every single instance the parole board failed

to make fair and meaningful parole considerations, particularly on the pleadings at the 12(b)(6) phase of litigation.

But beyond this, if the parole board only considered "the

serious nature and circumstances of the crime" there is still a

constitutional violation. In Bloodgood, we expressly required

the parole board to look beyond the nature of the crime and

look forward to the prisoner’s "law-abiding life." 782 F.2d at

473. Therefore, the majority’s belief that "the serious nature

4 BURNETTE v. FAHEY
and circumstances of the crime" is a sufficient reason to deny

parole runs contrary to our precedent. See 687 F.3d at 182.

Appellants most assuredly asserted a plausible Due Process

violation that should survive a 12(b)(6) motion to dismiss.

III.

There is a simpler reason why this Court should have

granted en banc review: the parole system described in Appellants’ complaint is fundamentally unfair. See Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973). Without passing judgment on

the veracity of Appellants’ allegations, these litigants have

pled facts sufficient to conclude that Virginia’s parole board

failed to consider any factor other than the nature of the

offense for which they are incarcerated in denying them

parole. This pro forma denial of parole robs inmates of the

right to fair consideration for release. Virginia’s parole board

has been entrusted with the heavy burden of determining

when an inmate will once more have the opportunity to be a

productive citizen. Therefore, the parole board must undertake this responsibility in a way that comports with fundamental fairness. A boiler-plate letter that uses a single factor

to deny individuals parole does not come close to satisfying

this solemn obligation.

"The criminal justice system . . . is concerned not only with

punishing the offender, but also with rehabilitating him."

Kelly v. Robinson, 479 U.S. 36, 52 (1986). Parole embodies

the very essence of rehabilitation, which Virginia’s parole

board systematically undermines. Virginia’s parole board

made an implicit pact with inmates: if you work hard at

reform we will fairly consider you for parole. Virginia’s

parole board is not upholding its end of the bargain. Our

refusal to correct Virginia’s parole system creates perverse

incentives for inmates who realize parole is practically unattainable.

BURNETTE v. FAHEY 5
Appellants overcame the dire circumstance of prison and

actively reformed their lives. I hope they do not grow weary

of self-improvement despite our decision to ignore their pleas

for constitutional vindication. "[T]he exercise of parole discretion influences the legitimacy of the entire criminal justice

system."* Assuming Appellants’ allegations prove true, they

have been subject to a grossly unfair parole system in violation of their Due Process rights. This fact, coupled with the

muddled state of our case law, compels me to dissent from the

Court’s decision to deny rehearing en banc.

*Victoria J. Palacios, Go and Sin No More: Rationality and Release

Decisions by Parole Boards, 45 S.C. L. Rev. 567, 568 (1994). 

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