Bolling v. Clarke

          MEMORANDUM OPINION

          Hon. Glen E. Conrad United States District Judge.

         Christopher 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.

         I. Background

         In 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.

         When a 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.

         When an 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.

         In 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.

         The 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.

         On June 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.

         II. Current Petition

         On June 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.

         This matter is now before the court on Respondent's motion to dismiss. Bolling's petition is both properly exhausted and timely.

         III. Standard of Review

         To 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 ...