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Bowling v. Director, Vdoc

United States District Court, W.D. Virginia, Roanoke Division

January 23, 2018

THOMAS FRANKLIN BOWLING, Petitioner,
v.
DIRECTOR, VDOC, Respondent.

          MEMORANDUM OPINION

          Hon. Jackson L. Kiser Senior United States District Judge

         Thomas 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.

         I. Factual Background

         In 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.

         Bowling 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.[1] 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.[2]

         On 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).

         II. Procedural

         Background

         Bowling 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.

         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 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).

         The 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).

         IV. Jurisdiction

         Respondent 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.

         V. Statute Of Limitations

         Bowling may only challenge the parole revocation proceedings that occurred in 2016.[3]See 28 U.S.C. ยง 2244(d)(1)(A) (time-barring habeas petitions unless ...


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