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Ebron v. Brown

United States District Court, E.D. Virginia, Richmond Division

March 1, 2018

THOMAS EBRON, Petitioner,
v.
KAREN D. BROWN, et al., Respondent.

          MEMORANDUM OPINION

          ROBERT E. PAYNE SENIOR UNITED STATES DISTRICT JUDGE.

         Thomas 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.

         I. REPORT AND RECOMMENDATION

         The Magistrate Judge made the following findings and recommendations:

         A. Procedural History

         On 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.

         In 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 crime
• Serious nature and circumstances of your offense(s)-[1]

         On February 15, 2017, Ebron filed the instant § 2254 Petition. Ebron raises four claims for relief.[2]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. at 4-5.)
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.)

         As explained below, Ebron's Claim Four lacks merit and his remaining claims are barred by the statute of limitations.

         B. Analysis

         1. Claim Four Lacks Merit

         The Due 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").

         A 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. 1991)).

         The 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)).

         The 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 ...


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