United States District Court, W.D. Virginia, Roanoke Division
Jackson L. Kiser Senior United States District Judge
Franklin Bowling, a Virginia inmate proceeding pro se, timely
filed a petition for a writ of habeas corpus, pursuant to 28
U.S.C. § 2254, challenging his continued detention by
the VDOC. Respondent filed a motion to dismiss, and Bowling
responded, making the matter ripe for disposition. After
review of the record, I will grant the motion to dismiss and
dismiss the petition.
1988, the Lynchburg City Circuit Court convicted Bowling of
capital murder, robbery, marijuana possession, and two counts
of use of a firearm. The circuit court sentenced Bowling, who
was a juvenile at the time he committed the offenses, to two
life sentences plus six years and thirty days.
became eligible for discretionary parole on April 26, 2005.
The Virginia Parole Board ("VPB") has considered
his release every hearing quarter since 2005; however,
"[d]ue to multiple life sentences, Bowling is not
eligible for mandatory parole release." Bennett Aff.
¶ 10, ECF No. 12, Attach. I. On April 15, 2016, the VPB
voted against granting Bowling discretionary parole for the
following reasons: the crimes committed, release at that time
would diminish the seriousness of the crimes, the serious
nature and circumstances of the offenses, and the Board
concluded that he should serve more of his sentence prior to
release on parole.
November 16, 2016, Bowling filed a petition for a writ of
habeas corpus in the Supreme Court of Virginia, but the court
refused review, stating that his claims were not cognizable
under Carroll v. Johnson, 68 S.E.2d 647, 652 (2009).
filed the current petition on April 4, 2017, arguing that the
VPB violated his rights under both the Eighth Amendment and
the Due Process Clause.
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 the Antiterrorism and Effective Death
Penalty Act of 1996, a federal court will not issue a writ of
habeas corpus for a claim previously adjudicated on the
merits in state court unless that decision is objectively
unreasonable. 28 U.S.C. § 2254(d).
Supreme Court of Virginia's dismissal pursuant to
Carroll did not constitute an adjudication "on
the merits" for the purposes of 28 U.S.C. §
2254(d); therefore, de novo review applies.
Higdon v. Jarvis. 2012 WL 738731, at *4 (W.D. Va.
Mar. 5, 2012); see also Hudson v. Hunt, 235 F.3d
892, 895 (4th Cir. 2000).
urges that Bowling's claims are not cognizable on federal
habeas review because challenges "which seek new parole
proceedings, but which would not necessarily result in the
petitioner's speedier release, do not 'lie at the
core of habeas corpus' and instead are cognizable under
42 U.S.C. § 1983." Learv v. Wright, 2013
WL 4509512, at *2 (E.D. Va. Aug. 22, 2013) (quoting
Wilkinson v. Dotson, 544 U.S. 74, 82 (2005)). I
disagree. Although "habeas is the exclusive remedy ...
for the prisoner who seeks 'immediate or speedier
release' from confinement, " Skinner v.
Switzer. 562 U.S. 521, 524 (2011) (quoting
Wilkinson, 544 U.S. at 82), "the Supreme Court
has not decided whether § 1983 is the exclusive remedy
for a prisoner who, like petitioner, seeks immediate release
even though the challenges he raises plainly do not make that
remedy available." Leary, 2013 WL 4509512, at
*2. I need not resolve the issue in the present case,
however, because Bowling's constitutional challenges fail
under both § 2254 and § 1983.
Statute Of Limitations
may only challenge the parole revocation proceedings that
occurred in 2016.See 28 U.S.C. § 2244(d)(1)(A)
(time-barring habeas petitions unless ...