United States District Court, W.D. Virginia, Roanoke Division
Glen E. Conrad United States District Judge.
Shawn Bolling, a Virginia inmate proceeding pro se,
filed this petition for a writ of habeas corpus, pursuant to
28 U.S.C. § 2254, challenging the calculation of the
length of his confinement. Respondent filed a motion to
dismiss, and Bolling responded, making the matter ripe for
disposition. After review of the record, the court concludes
that the petition must be dismissed.
January of 2007, the Russell County Circuit Court convicted
Bolling of robbery, sentencing him to twenty-five years'
imprisonment, with thirteen years suspended. In October of
2007, the circuit court convicted and sentenced Bolling on
additional charges of: abduction (ten year sentence with six
years and two months suspended), rape (twenty-five year
sentence with thirteen years suspended), and sodomy
(twenty-five year sentence with thirteen years suspended). In
the October 12, 2007 sentencing order, the trial court stated
that the abduction, rape, and sodomy sentences “shall
run consecutively, ” and that the total sentence
imposed was sixty years, with thirty-two years and two months
suspended. Therefore, Bolling's aggregate active sentence
on the October convictions was twenty-seven years and ten
months. The circuit court also granted defense counsel's
motion for Bolling's January robbery sentence (No.
CR05-8162) to run concurrently with his October sentences.
prisoner becomes a VDOC responsible offender, the VDOC
calculates his anticipated good-time release date. On January
14, 2008, the VDOC mistakenly ran all four of Bolling's
sentences concurrently, informing Bolling that he had an
active sentence of twelve years and a good-time release date
of January 5, 2016.
offender is within a certain time period of his release or
there is an inquiry regarding his time computation, the VDOC
Court and Legal Services Unit conducts an audit of an
offender's time computation record. The audit ensures
that the time calculation is accurate and follows applicable
law and policy.
2015, the VDOC audited Bolling's time computation record,
and requested clarification from the Russell County Circuit
Court regarding his October sentences. On November 6, 2015,
the circuit court entered an “Amended Conviction and
Sentencing Order, ” reiterating that the three separate
sentences for abduction, rape, and sodomy were to run
consecutively, and the January sentence for robbery was to
run concurrently with the October sentences.
VDOC recomputed Bolling's time in accordance with the
Amended Order, correcting Bolling's sentence to
twenty-seven years and ten months, with a good-time release
date of November 13, 2029.
16, 2016, Bolling filed a petition for a writ of habeas
corpus in the Supreme Court of Virginia, alleging that the
court committed “judicial malpractice” by
improperly entering an amended sentencing order outside the
21-day period imposed by Va. Sup. Ct. R. 1:1. The court
denied his petition as meritless.
15, 2017, Bolling filed a § 2254 petition, raising the
same claim as in his state habeas petition: the
trial court committed judicial misconduct when it issued a
new amended sentencing order after the 21-day limitation
period under Va. Sup. Ct. R. 1:1 had expired. Bolling alleges
that the court's illegal action resulted in a
substantially longer sentence and violated his Eighth and
Fourteenth Amendment rights.
matter is now before the court on Respondent's motion to
dismiss. Bolling's petition is both properly exhausted
Standard of Review
obtain federal habeas relief, 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). Under 28 U.S.C. § 2254(d),
however, a federal court may not grant a writ of habeas