United States District Court, W.D. Virginia, Roanoke Division
Freeman McNabb, Pro Se Petitioner;
Margaret Hoehl O'Shea, Assistant Attorney General,
Richmond, Virginia, for Respondent.
P. JONES UNITED STATES DISTRICT JUDGE
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.
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.
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)).
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.
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
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.
Statute of Limitations.
the Anti-terrorism Effective Death Penalty Act, a one-year
period of limitation for federal habeas corpus runs from the
(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