United States District Court, E.D. Virginia, Richmond Division
E. PAYNE SENIOR UNITED STATES DISTRICT JUDGE.
Ebron, a Virginia state prisoner proceeding pro se,
brings this petition pursuant to 28 U.S.C. § 2254
("§ 2254 Petition, " ECF No. 1). The
Magistrate Judge recommended that the Court deny the §
2254 Petition and dismiss the action. Ebron filed objections.
(ECF No. 17.) For the reasons that follow, Ebron's
objections will be overruled and the Motion to Dismiss (ECF
No. 11) will be granted.
REPORT AND RECOMMENDATION
Magistrate Judge made the following findings and
October 15, 1985, Ebron pled guilty to capital murder,
robbery, and a firearm violation in the Circuit Court for the
City of Alexandria ("Circuit Court"). Plea
Agreement 2, Commonwealth v. Ebron, No. F-7291 (Va.
Cir. Ct. filed Oct. 15, 1985). On December 16, 1985, the
Circuit Court sentenced Ebron to life imprisonment plus two
years. Judgment 2, Commonwealth v. Ebron, No. F-7291
(Va. Cir. Ct. Dec. 16, 1985). Ebron neither appealed nor
filed a petition for a writ of habeas corpus.
March 2 016, Ebron was denied parole by the Virginia Parole
Board ("VPB") on the following grounds:
• Crimes committed - Homicide - Capital,
• Robbery; Weapon Offense
• Extensive criminal record
• History of violence
• Release at this time would diminish seriousness of
• Serious nature and circumstances of your
February 15, 2017, Ebron filed the instant § 2254
Petition. Ebron raises four claims for relief.Specifically,
Claim One "Ebron claims that he was unlawfully and
unconstitutionally sentenced . where the sentence was imposed
after a review of his juvenile criminal history, in a
[Presentence Investigation Report ("PSR")] he had
no knowledge of, in violation of his right to due process . .
. creating a miscarriage of justice." (Br. Supp. §
2254 Pet. 4, ECF No. 2.)
Claim Two "Ebron claims that the Circuit Court . did not
have subject matter or personal jurisdiction for which to
prosecute him, and did do in violation of the Interstate
Agreement on Detainers Act's Anti[-]Shuttling Provision,
creating a miscarriage of justice." (Id.)
Claim Three "Ebron claims that he was denied effective
assistance of counsel in violation of the Sixth Amendment
where his trial attorney knew that a [PSR] was made, pursuant
to an investigation and Ebron was not informed, and, that the
[Interstate Agreement on Detainers] was violated prior to
trial creating a miscarriage of justice." (Id.
Claim Four "Ebron claims that he has been unlawfully
denied parole, where the [VPB] has reviewed and relied upon
information in his file to deny him parole (pre-sentence
report), creating a miscarriage of justice."
(Id. at 5.)
explained below, Ebron's Claim Four lacks merit and his
remaining claims are barred by the statute of limitations.
Claim Four Lacks Merit
Process Clause applies when government action deprives an
individual of a legitimate liberty or property interest.
See Bd. of Regents of State Colls, v. Roth, 408 U.S.
564, 569-70 (1972). Thus, the first step in analyzing a
procedural due process claim is to identify whether the
alleged conduct affects a protected liberty or property
interest. Beverati v. Smith, 120 F.3d 500, 502 (4th
Cir. 1997) (citations omitted). Where government action
impacts a protected liberty interest, the second step is to
determine "what process is due" under the
circumstances. Morrissey v. Brewer, 408 U.S. 471,
481 (1972) (observing that "due process is flexible . .
. not all situations calling for procedural safeguards call
for the same kind of procedure").
liberty interest may arise from the Constitution itself, or
from state laws and policies. Wilkinson v. Austin,
545 U.S. 209, 220-21 (2005). "There is no constitutional
or inherent right of a convicted person to be conditionally
released before the expiration of a valid sentence."
Greenholtz v. Inmates of Neb. Penal & Corr.
Complex, 442 U.S. 1, 7 (1979). "With no
constitutional right to parole per se, federal
courts recognize due process rights in an inmate only where
the state has created a ' legitimate claim of
entitlement' to some aspect of parole." Vann v.
Angelone, 73 F.3d 519, 522 (4th Cir. 1996) (quoting
Gaston v. Taylor, 946 F.2d 340, 344 (4th Cir.
United States Court of Appeals for the Fourth Circuit
consistently has found that the pertinent Virginia statutes
fail to create a protected liberty interest in
release on parole. See Burnette v. Fahey,
687 F.3d 171, 181 (4th Cir. 2012) (citing Gaston,
946 F.2d at 344; Vann, 73 F.3d at 522. Virginia, however, has
created a limited liberty interest in consideration for
parole. Burnette v. Fahey, No. 3:10CV70, 2010 WL
4279403, at *8 (E.D. Va. Oct. 25, 2010); Burnette,
687 F.3d at 181. "The question thus becomes what
procedures are required under the Due Process Clause in
[considering] an inmate for discretionary release on
parole." Burnette, 2010 WL 4279403, at *8
(quoting Neal v. Fahey, No. 3:07cv374, 2008 WL
728892, at *2 (E.D. Va. Mar. 18, 2008)).
Fourth Circuit has stated that the Constitution requires only
a very limited amount of process in considering an inmate for
parole. Specifically, " [a] t most, . . . parole
authorities must furnish to the prisoner a statement of its
reasons for denial of parole." Burnette, 687
F.3d at 181 (alteration and omission in original) (citation
omitted) (internal quotation marks omitted). "So long as
the statement provides a valid ground for denying parole, the
federal courts cannot, under the guise of due process, demand
more from the state." Burnette, 2010 WL
4279403, at *8 (citation omitted). Moreover, "where the
denial of parole . . . rests on one constitutionally valid
ground, the Board's consideration of an allegedly ...