United States District Court, E.D. Virginia, Richmond Division
YO, f/k/a Mario L. Ballard, Petitioner,
HAROLD W. CLARKE, Respondent.
Hannah Lauck, Judge
Virginia state prisoner proceeding pro se, brings
this petition pursuant to 28 U.S.C. § 2254 ("§
2254 Petition, " ECF No. 1) challenging his state
collateral proceedings as well as his placement in the Sex
Offender Residential Treatment ("S.O.R.T") program
during his confinement. On June 21, 2017, the Magistrate
Judge issued a Report and Recommendation that recommended
denying Yo's § 2254 Petition as well as Yo's
Motion for Discovery. (ECF No. 25.) Yo has filed objections.
(ECF No. 26.) Yo has also filed an Affidavit with respect to
his objections ("Yo Affidavit, " ECF No. 27). For
the reasons that follow, Yo's objections will be
OVERRULED, and Yo's § 2254 Petition and Motion for
Discovery will be DENIED.
Magistrate Judge made the following findings and
A. Relevant Procedural History and Yo's
Yo was convicted in the Circuit Court of Nottoway County,
Virginia ("Circuit Court") of one count of
malicious wounding. (ECF No. 14-1, at 1-2.)On January 8,
2010, the Circuit Court entered judgment and sentenced Yo to
ten years of incarceration. (Id. at 2.) The Court of
Appeals of Virginia subsequently refused Yo's petition
for appeal. (ECF No. 14-8, at 1.)
On October 3, 2013, Yo filed a § 2254 petition in this
Court, challenging his malicious wounding conviction.
(See ECF No. 14-11, at 1-26.) By Memorandum Opinion
and Order entered on July 1, 2014, the Court denied Yo's
petition. Yo v. Lester, No. 3:13CV701, 2014 WL
2968069, at *6 (E.D. Va. July 1, 2014). The United States
Court of Appeals for the Fourth Circuit denied a certificate
of appealability and dismissed Yo's appeal. Yo v.
Lester, 614 F.App'x 678, 679 (4th Cir. 2015). The
United States Supreme Court denied Yo's petition for a
writ of certiorari. Yo v. Ratliffe-Walker, 136 S.Ct.
January 27, 2016, Yo filed a petition for a writ of habeas
corpus in the Supreme Court of Virginia. (ECF No. 14-14, at
1.) Yo raised the following claims for relief:
a. Ex Post Facto Clause violation for the state and federal
Constitution because the Virginia Department of Corrections
did an administrative transfer of the Petitioner due to a new
policy it had enacted after Petitioner's sentence,
requiring him to be placed at Greensville Correctional Center
to participate in its sex offenders program even though he is
not incarcerated for a sex crime, and because the policy
initially stated that the offender had to be incarcerated for
a sex crime.
b. Due Process Clause violation for the state and federal
Constitution because the Petitioner was at a lower level
facility, where he had earned a right to be by way of his
c. Special law clause violation for the state and federal
Constitution because the respondent has acted on a whim
simply because Petitioner has a sex crime on his record, as a
result taking him away from his numerous privileges.
d. Slavery abolished clause violation because the respondent
kidnapped Petitioner after knowing that he was civilly
committed since 2008, meaning once Petitioner is released he
will be remanded to the Virginia Center for Behavior
e. Cruel and Unusual Punishment clause violation [of] the
state and federal [Constitution] because Virginia has applied
four penalties to Petitioner for one prior offense and they
are: civil commitment, sex offender registration, and
notification, and S.O.R.T., which has increased his
(Id. at 4-5.) On May 10, 2016, the Supreme Court of
Virginia dismissed Yo's petition, concluding that his
"claims, which challenge the conditions of his
confinement, are barred because the writ is not available to
secure a judicial determination of any question which, even
if determined in petitioner's favor, could not affect the
lawfulness of his custody and detention." (ECF No.
14-15, at 1 (citation omitted).)
9, 2016, Yo filed the instant § 2254 Petition in this
Court.(§ 2254 Pet. 14.) In his § 2254
Petition, Yo raises the following claims for relief:
Claim One: "Suspension of habeas corpus violation[.] On
May 10, 2016, the Supreme Court of Virginia dismissed the
Petitioner's writ of habeas corpus without a hearing.
Likewise, it neither issued a show cause order for the above
said writ." (Id. at 5.)
Claim Two: "Peonage or slavery abolished clause
violation[.] The Respondent has taken the Petitioner from
Lunenburg Correctional Center and placed him into the custody
of Greensville Correctional Center, forcing him to partake in
its Sex Offender Residential Treatment (S.O.R.T.) program.
However, Petitioner does not have a current sex offense
requiring him to be at GRCC." (Id. at 6-7.)
has moved to dismiss, arguing that the instant § 2254
petition is successive,  that Claim One is procedurally
defaulted,  and that Yo's claims lack merit. (Br.
Supp. Mot. Dismiss 7-11, ECF No. 14.) Yo has filed a
Response. (ECF No. 18.) Yo has also filed a Motion for
Discovery. (ECF No. 19.) By Memorandum Order entered on April
25, 2017, the Court directed the parties to submit further
briefing regarding Yo's contention that he lost ninety
days of good conduct time because of his removal from the
S.O.R.T. program. (ECF No. 21, at 2.) Both parties have
responded. (ECF Nos. 23, 24.) As explained below, it is
RECOMMENDED that Yo's claims be DISMISSED and that
Yo's Motion for Discovery be DENIED.
Applicable Constraints upon Habeas Review
order to obtain federal habeas relief, at a minimum, a
petitioner must demonstrate that he is "in custody in
violation of the Constitution or laws or treaties of the
United States." 28 U.S.C. § 2254(a). The
Antiterrorism and Effective Death Penalty Act
("AEDPA") of 1996 further circumscribed this
Court's authority to grant relief by way of a writ of
habeas corpus. Specifically, "[s]tate court factual
determinations are presumed to be correct and may be rebutted
only by clear and convincing evidence." Gray v.
Branker, 529 F.3d 220, 228 (4th Cir. 2008) (citing 28
U.S.C. § 2254(e)(1)). Additionally, under 28 U.S.C.
§ 2254(d), a federal court may not grant a writ of
habeas corpus based on any claim that was adjudicated on the
merits in state court unless the adjudicated claim:
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
28 U.S.C. § 2254(d). The Supreme Court has emphasized
that the question "is not whether a federal court
believes the state court's determination was incorrect
but whether that determination was unreasonable-a
substantially higher threshold." Schriro v.
Landrigan, 550 U.S. 465, 473 (2007) (citing
Williams v Taylor, 529 U.S. 362, 410