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McNabb v. Kiser

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

May 21, 2018

GERALD FREEMAN McNABB, Petitioner,
v.
JEFFERY B. KISER, WARDEN, Respondent.

          Gerald Freeman McNabb, Pro Se Petitioner;

          Margaret Hoehl O'Shea, Assistant Attorney General, Richmond, Virginia, for Respondent.

          OPINION

          JAMES P. JONES UNITED STATES DISTRICT JUDGE

         In this pro se Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254, the petitioner Gerald Freeman McNabb, a Virginia inmate, challenges the validity of his continued confinement after conviction of an institutional disciplinary charge which resulted in the denial of his discretionary parole. After review of the record, I conclude that the respondent's Motion to Dismiss must be granted because McNabb's petition is untimely filed.

         I. Background.

         McNabb is incarcerated at Red Onion State Prison (“ROSP”) pursuant to a life sentence. He became eligible for discretionary parole on October 11, 1995. On February 10, 2016, McNabb received an institutional disciplinary offense for possessing a weapon or a sharpened instrument. McNabb declined a penalty offer and was found guilty at the disciplinary hearing on February 16, 2016. ROSP imposed a $12 fine. McNabb then appealed his disciplinary conviction to the warden and to the regional administrator for the Western Region of the Virginia Department of Corrections. His conviction was upheld at both levels of appeal. His institutional appellate proceedings concluded on May 31, 2016.

         On August 9, 2016, McNabb filed a petition for a writ of habeas corpus in the Wise County, Virginia, Circuit Court, alleging that his Fourteenth Amendment rights were violated at the institutional disciplinary hearing for the February conviction. On October 3, 2016, the state court denied his petition as incognizable under Carroll v. Johnson, 685 S.E.2d 647, 652 (Va. 2009) (holding that “disputes which only tangentially affect an inmate's confinement, such as . . . challenges to parole board decisions, are not proper matters for habeas corpus jurisdiction because an order entered in the petitioner's favor in those cases will not result in an order interpreting convictions or sentences that, on its face and standing alone, will directly impact the duration of the petitioner's sentence.”) (citing Va. Parole Bd. v. Wilkins, 498 S.E.2d 695, 695 (Va. 1998)).

         On August 22, 2016, the Virginia Parole Board (“VPB”) denied McNabb's request for release on discretionary parole, citing: (1) his record of institutional infractions, (2) the serious nature and circumstances of his underlying offenses, and (3) his history of violence. McNabb submitted a request for reconsideration to the VPB, arguing that the February disciplinary infraction was fabricated. The VPB denied the request for reconsideration, noting, at least in part, that the February disciplinary infraction did “not affect the reason(s) you were not granted parole.” Petition, Mem. Ex. 2, VPB Appeal/ Reconsideration of Not Granted Decision, ECF No. 8-2.

         On April 28, 2017, McNabb filed a habeas petition in the Supreme Court of Virginia, but the court dismissed it as untimely, procedurally barred, and incognizable pursuant to Carroll. McNabb v. Kiser, No. 170573, slip op. at 1 (Va. Sept. 14, 2017), ECF No. 22-2; see Va. Code Ann. § 8.01-654(A)(2) (establishing the limitations period.

         On September 21, 2017, McNabb filed the current petition. Respondent moves to dismiss McNabb's petition and McNabb has responded to the motion, making the case ripe for review.

         II. Statute of Limitations.

         Under the Anti-terrorism Effective Death Penalty Act, a one-year period of limitation for federal habeas corpus runs from the latest of:

(A) [T]he date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) [T]he date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant ...

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