Sharon Burnette v. Helen Fahey, 2012 U.S. App. LEXIS 13925

Background

Inmates allege the Virginia Parole Board adopted unwritten policies and procedural changes that effectively abolish parole for violent‑offender inmates.
Virginia abolished discretionary parole for new felony offenders after 1994, though discretionary parole remained for pre‑1995 offenders under Board control.
Board rules require annual review and a thorough individualized assessment, with parole release only if suitable under adopted rules; senhor general practice includes factors in a Policy Manual.
Procedural changes cited: removal of face‑to‑face interviews, reliance on parole examiners and electronic reporting, use of a policy manual instead of Administrative Code rules, and reduced family/inmate contact.
Statistical evidence is offered showing parole grant rates for violent offenders declined substantially since 1995, though not all denials relied solely on offense severity.
District court dismissed the complaint, and the Fourth Circuit affirmed dismissal, ruling no plausible entitlement to relief under due process or ex post facto theories.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the inmates have a protectible liberty interest in parole consideration	Inmates contend Virginia creates a right to parole consideration and procedural protections.	Board argues parole is discretionary; no liberty interest beyond statutory obligation to consider with minimal process.	No plausible liberty interest in parole release; only a right to consideration with minimal process.
Whether the Board's procedural changes violate due process by failing to consider multiple factors	Changes show de facto sole reliance on offense severity, depriving individualized consideration.	Statutory factors remain; changes do not prove lack of individualized review; not a due process violation.	Allegations fail to show plausible failure of individualized consideration; dismissal affirmed.
Whether the Board's policy changes amount to an ex post facto violation	harsher parole practices retroactively increase punishment for violent offenders.	Policy changes are not retroactive punishment, nor a new rule increasing time served; discretion remains.	No ex post facto violation; changes do not produce substantial risk of increased punishment.
Whether the pleadings meet the Iqbal/Twombly plausibility standard	Statistical and individual histories show a pattern of de facto abolition of parole for violent offenses.	Facts do not plausibly show a de facto abolition; Board continues to grant parole to some violent offenders.	Plaintiffs fail to plead a plausible entitlement to relief; district court affirmed.

Key Cases Cited

Greenholtz v. Inmates of Neb. Penal & Correctional Complex, 442 U.S. 1 (U.S. Supreme Court 1979) (parole eligibility and due process framework; no constitutional right to parole release)
Morrissey v. Brewer, 408 U.S. 471 (U.S. Supreme Court 1972) (due process requirements for parole revocation proceedings)
Swarthout v. Cooke, 131 S. Ct. 859 (U.S. Supreme Court 2011) (minimal due process protections in parole decisions)
Vann v. Angelone, 73 F.3d 519 (4th Cir. 1996) (parole review involves weighing multiple factors; written reasons alone insufficient)
Gaston v. Taylor, 946 F.2d 340 (4th Cir. 1991) (parole suitability requires consideration of multiple factors, not rote application)
Hill v. Jackson, 64 F.3d 163 (4th Cir. 1995) (recognizes discretion in parole but not entitlement to release)
Bloodgood v. Garraghty, 783 F.2d 470 (4th Cir. 1986) (board must avoid reliance on invalid factors and provide meaningful explanation)
Franklin v. Shields, 569 F.2d 784 (4th Cir. 1978) (parole procedures limitations and due process considerations)
Garner v. Jones, 529 U.S. 244 (U.S. Supreme Court 2000) (ex post facto analysis for discretionary processes and rules)
Ashcroft v. Iqbal, 556 U.S. 662 (U.S. Supreme Court 2009) (pleading standards requiring plausibility)