Carl Melvin TOWNES, Petitioner-Appellant, v. Larry W. JARVIS, Warden; Gene M. Johnson, Director, Virginia Department of Corrections, Respondents-Appellees.
No. 05-7382
United States Court of Appeals, Fourth Circuit
Decided: Aug. 19, 2009.
566 F.3d 543
D.
Finally, we turn to whether the District Court‘s error “seriously affect[ed] the fairness, integrity, or public reputation of judicial proceedings,” and whether this Court should exercise its discretion to correct the error. Olano, 507 U.S. at 732, 113 S.Ct. 1770 (quotation marks and citations omitted).
The Government argues, citing Gricco, that a concurrent sentence and additional assessment “hardly amount[] to a miscarriage of justice warranting the exercise of the Court‘s discretion under Rule 52(b).” Gov‘t Br. 17. We disagree for the reasons set forth in section II(c) above.
In Miller, we concluded, on the basis of the Supreme Court‘s decisions in Ball and Rutledge, that an additional, unauthorized conviction—together with its concurrent sentence, additional assessment, and the potential for adverse collateral consequences—seriously affected the fairness of the district court proceedings. 527 F.3d at 73-74. Following the Supreme Court‘s direction, we exercised our discretion under Rule 52(b) and concluded that one of the convictions, as well as its concurrent sentence and assessment, must be vacated. Id. at 74 (citing Ball, 470 U.S. at 864, 105 S.Ct. 1668). We note that other courts of appeals have similarly exercised their discretion in circumstances analogous to those presented in Miller and in the present case.10
We hold that leaving this error uncorrected would seriously affect the fairness and integrity of these proceedings and, therefore, conclude that we will exercise our discretion to grant relief under Rule 52(b).
III.
For the foregoing reasons, we will remand this case to the District Court with instructions to vacate the sentence on one of Tann‘s convictions under
ARGUED: Justin Sanjeeve Antonipillai, Carl Ezekiel Ross, Arnold & Porter, LLP., Washington, DC, for Appellant. Richard Carson Vorhis, Office of the Attorney General of Virginia, Richmond, Virginia, for Appellees. ON BRIEF: Erika K. Woods, Arnold & Porter, L.L.P., Washington, D.C., for Appellant. Robert F. McDonnell, Attorney General of Virginia, Richmond, Virginia, for Appellees.
Before MOTZ, GREGORY, and SHEDD, Circuit Judges.
Affirmed by published opinion. Judge MOTZ wrote the opinion, in which Judge GREGORY joined. Judge SHEDD wrote a dissenting opinion.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
The Virginia Parole Board found Carl Melvin Townes ineligible for discretionary parole. After a state court denied him habeas relief, Townes filed a petition for a writ of habeas corpus in federal court, claiming that the parole ineligibility determination violated his due process and equal protection rights. The district court dismissed the petition. We granted a certificate of appealability on both constitutional claims. Because the state released Townes from prison during the pendency of this appeal, it initially contends that Townes‘s claims are now moot. Alternatively, the state asserts that the district court properly dismissed the claims. Although we do not find the claims moot, we agree with the district court that Townes has failed to state any claim upon which relief can be granted and so affirm its dismissal of the case.
During a ten-day period in February 1991, Townes robbed three fast-food restaurants in different Virginia counties. For two of these crimes, the state specifically convicted Townes of using or displaying a firearm as part of the felony offenses. But for the third, Townes pled guilty to common law robbery in exchange for the government declining to prosecute the additional firearm charge with which it charged Townes. As a result of these various convictions, the state committed Townes to the custody of the Virginia Department of Corrections.
In Virginia, a prisoner generally becomes eligible for parole after serving a specified portion of his sentence. See
The Board considered and rejected Townes‘s parole application, finding him ineligible for parole consideration pursuant to the three-strikes statute. Townes then filed a habeas corpus petition in the Supreme Court of Virginia, arguing that the Board violated his due process rights in its method of counting his predicate offenses and violated his equal protection rights by discriminating against him because of his race. The state court promptly dismissed his habeas petition as “frivolous.” Townes v. Dir. of the Dep‘t of Corrs., No. 032123 (Va. Nov. 5, 2003).
Townes next filed this habeas petition pursuant to
While this appeal was pending, Virginia released Townes from prison on mandatory parole pursuant to
II.
Initially, the Warden contends that Townes‘s release from custody moots this case. “[T]he doctrine of mootness constitutes a part of the constitutional limits of federal court jurisdiction.... [A] case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” United States v. Hardy, 545 F.3d 280, 283 (4th Cir. 2008) (quotations and citations omitted). Particularly relevant here, “[m]ootness has been described as ‘the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).‘” Arizonans for Official English v. Arizona, 520 U.S. 43, 68 n. 22, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) (quoting U.S. Parole Comm‘n v. Geraghty, 445 U.S. 388, 397, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980)).
Thus, for a controversy to be moot, it must lack at least one of the three required elements of Article III standing:
First, Townes still asserts an injury-in-fact. Although his release from prison has foreclosed the possibility of a shorter period of incarceration, the parole ineligibility finding still may affect the length of his parole. See Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) (describing collateral consequences). Therefore, because Townes could receive a shorter period of parole if he receives a discretionary parole hearing, he has properly asserted an injury-in-fact. See Mujahid v. Daniels, 413 F.3d 991, 994-95 (9th Cir. 2005).1
Second, Townes continues to satisfy the causation prong of the standing requirement. Article III requires “a ‘causal connection between the injury and the conduct complained of,’ meaning that the injury is ‘fairly traceable’ to the defendant‘s actions.” Covenant Media of S.C., LLC v. City of N. Charleston, 493 F.3d 421, 428 (4th Cir. 2007) (quoting Lujan, 504 U.S. at 560). Here, the Board‘s parole ineligibility finding precludes Townes from an opportunity to obtain a shortened period of parole.
Finally, Townes has alleged an injury that still satisfies the redressability prong. “[F]or an injury to meet the redressability standard, ‘it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.‘” In re Mut. Funds Inv. Litig., 529 F.3d 207, 216-17 (4th Cir. 2008) (quoting Lujan, 504 U.S. at 561). In some cases, like the one at hand, a plaintiff will seek immediate relief from a federal court as a necessary antecedent to the ultimate relief he seeks from a different entity, like an administrative agency. In these situations, to meet the redressability prong, a party must demonstrate that a favorable decision from the federal court likely would provide him immediate relief, but need not demonstrate that it likely would provide him the ultimate, discretionary relief sought from the agency. See FEC v. Akins, 524 U.S. 11, 25, 118 S.Ct. 1777, 141 L.Ed.2d 10 (1998).
In Akins, the Supreme Court specifically addressed this very issue. There the FEC contended that plaintiffs lacked standing because even if the agency “agreed with [the plaintiffs‘] view of the law,” it was “possible” that the FEC could “still have decided in the exercise of its discretion” not to grant them relief. Id. According to the FEC, plaintiffs had failed to show that their alleged harm was (1) fairly traceable to the FEC‘s decision and (2) redressable by judicial action. The Supreme Court flatly rejected this argument, explaining that it could not “know that the FEC would have exercised its discretion” to deny plaintiffs relief. Id. (emphasis added). The Court further explained:
Agencies often have discretion about whether or not to take a particular action. Yet those adversely affected by a discretionary agency decision generally have standing to complain that the agency based its decision upon an improper legal ground. If a reviewing court agrees that the agency misinterpreted the law, it will set aside the agency‘s action ... even though the agency ... might later, in the exercise of its lawful discretion, reach the same result for a different reason. Thus [plaintiffs‘] “injury in fact” is “fairly traceable” to the FEC‘s decision ... even though the FEC might reach the same result exercising its discretionary powers lawfully. For similar reasons, the courts in this case can “redress” [plaintiffs‘] “injury in fact.”
Id. (emphasis added; citations omitted). Thus, the Court in Akins held that a plaintiff could establish redressability simply by demonstrating that an agency “misinterpreted the law,” even though the agency might ultimately “reach the same result.” The Court recognized that, in this situation, a plaintiff can establish redressability without demonstrating that the agency would likely grant the ultimate relief sought; to require a showing of likelihood of ultimate relief in this situation would involve courts in the speculative (if not impossible) task of predicting how an agency will exercise its discretion.
Of course, Akins also indicates that if a court “know[s]” that an agency will not grant the ultimate relief the plaintiff seeks, the plaintiff lacks standing. Id. Or, put another way, if “no realistic possibility” exists that a plaintiff can obtain the ultimate relief, he will fail to satisfy the redressability prong. See Albuquerque Indian Rights v. Lujan, 930 F.2d 49, 56 (D.C. Cir. 1991); Ranger Cellular v. FCC, 348 F.3d 1044, 1048-50 (D.C. Cir. 2003).
The Supreme Court has applied this same standing analysis to cases in which plaintiffs challenge government racial set-aside policies. Such plaintiffs need not show a likelihood that they would gain the ultimate relief sought. Rather, they need only show that they are “able and ready” to seek the opportunity and “that a discriminatory policy prevents [them] from doing so on an equal basis.” Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 666, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993); see also W.H. Scott Constr. Co. v. City of Jackson, 199 F.3d 206, 212-15 (5th Cir. 1999); Lac Vieux Desert Band of Lake Superior Chippewa Indians v. Mich. Gaming Control Bd., 172 F.3d 397, 403-06 (6th Cir. 1999).2
The immediate relief sought by Townes is a judgment that the state‘s parole-ineligibility determination was unconstitutional, necessitating a remand to the district court to order the Parole Board to rescind that determination. We have previously granted similar relief. See Fender v. Thompson, 883 F.2d 303, 307-08 (4th Cir. 1989) (remanding to the district court for entry of an order directing the Virginia Department of Corrections to rescind its parole ineligibility determination). Therefore, if Townes prevails on the merits before us, he likely will obtain the immediate relief he seeks.
Of course, Townes hopes that this immediate relief will result in a hearing before the Board and a reduction in the length of his parole. The Warden‘s contention that “[u]nder Virginia law, the Virginia Parole Board has absolute discretion in matters of parole,” Supp. Br. of Appellees at 9, belies any suggestion that the Board lacks power to provide Townes relief. Given the wide discretion the Board enjoys, see Vann v. Angelone, 73 F.3d 519, 523 (4th Cir. 1996), we do not “know” it would refuse to exercise its discretion to shorten Townes‘s period of parole. Akins, 524 U.S. at 25. Like the Supreme Court in Akins, we refuse to speculate as to how an independent agency would exercise its discretion. See id. Thus, Townes has set forth facts sufficient to demonstrate that his claims are not moot, and we accordingly turn to the merits of his appeal.3
III.
Townes contends that the Supreme Court of Virginia‘s rejection of both his equal protection and due process claims provide a basis for habeas relief in this court.4 We can grant habeas relief only when an underlying state-court adjudication was “contrary to, or involved an unreasonable application of, clearly established Federal law,” or “was based on an unreasonable determination of the facts.”
A.
Townes alleges that the Board denied him due process rights when it found him ineligible for parole under the Virginia three-strikes parole ineligibility statute,
Townes has not identified any clearly established federal law that prohibits the Board from considering conduct unnecessary to a conviction as part of its three-strikes determination. Nor has he demonstrated that the state unreasonably determined any facts in applying the governing legal principles to his case. This claim cannot, therefore, provide a basis for habeas relief. See Ramdass v. Angelone, 530 U.S. 156, 166 (2000) (Kennedy, J., plurality op.).
B.
Townes, an African American, also maintains that the Board violated his equal protection rights by discriminating against him because of his race. Specifically, he alleges that the Board violated these rights by declining to provide him the benefit of the “common act” exception to the three-strikes parole eligibility statute, when it did provide such a benefit to a Caucasian woman.
Townes contends that the “district court failed to properly apply the [12(b)(6)] standard of review” in rejecting his equal protection claim. Brief of Appellant at 29, 30; see also id. at 31-35; Reply Brief at 16-19. When “assessing whether a § 2254 claim has been ‘properly dismissed without an evidentiary hearing or discovery,‘” a court “must evaluate its underlying allegations pursuant to the principles of Federal Rule of Civil Procedure 12(b)(6).” Wolfe v. Johnson, 565 F.3d 140, 160 (4th Cir. 2009) (quoting Conaway v. Polk, 453 F.3d 567, 582 (4th Cir. 2006)). Therefore, a court must accept as true a habeas petition‘s well-pleaded allegations (but not its “legal conclusions,” see Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999)). Of course, when a state court has adjudicated a habeas claim on the merits (Townes concedes that, under controlling circuit precedent, the state court adjudicated his claim on the merits, Brief of Appellant at 9 n. 3), the petitioner must allege facts sufficient to meet the exacting standard set forth in
The Virginia three-strikes statute is race neutral. See
Relying only on a single newspaper article, Townes alleges that he is similarly situated to Sue Kennon, reportedly a white, “upper middle-class housewife,” who committed four robberies with a broken toy pistol over the course of eight days. See Bill Baskervill, Convicted Bank Robber Finds Unlikely Allies, Richmond Times Dispatch, July 28, 2003, at B5. According to the newspaper article, the Board ruled that Kennon‘s four crimes in eight days constituted “a single criminal act,” exempting her from the three-strikes statute. Id. Kennon thus became eligible for discretionary parole, which the Board granted. Id.
Clearly, in some respects Townes‘s and Kennon‘s crimes differ. Kennon committed four robberies in eight days with the same toy pistol while Townes, accompanied by various accomplices, committed three robberies in ten days with different real guns. Just as clearly, however, in some respects their crimes are similar. Both robbed a series of retail establishments. Both completed these robberies in less than two weeks. And both displayed a weapon during the robberies. But even assuming Townes alleged, and the state court unreasonably rejected, facts sufficient to satisfy the first element of an equal protection claim—unequal treatment of similarly situated persons6—he has failed to allege facts sufficient to satisfy the second element of such a claim—intentional discrimination.
To satisfy this second element in a habeas petition, Townes must provide allegations sufficient to hold that the state court unreasonably determined the facts against him when it rejected his claim that the Board intentionally or purposefully discriminated against him on the basis of race. This is so because “[t]o prove that a statute has been administered or enforced discriminatorily,” and so violates equal protection rights, a plaintiff must show “more ... than the fact that a benefit was denied to one person while conferred on another.” Sylvia Dev. Corp. v. Calvert County, 48 F.3d 810, 819 (4th Cir. 1995) (emphasis added). He must also allege that the state intended to discriminate against him. Id. Townes alleges no facts that, if proved, would demonstrate that the Board intentionally discriminated against him. See Rivera-Powell v. N.Y. City Bd. of Elections, 470 F.3d 458, 470 (2d Cir. 2006). A fortiori, Townes has failed to allege a basis for us to hold that the state court unreasonably determined his claim to be frivolous.
Of course, Townes alleges that “[i]n a similar case, (Sue Kennon), a white upper-middle-class woman in similar circumstances and facts was given consideration not given to this black male.” But his sole allegation as to the Board‘s motive is:
The arbitrary and [capricious] refusal of the Board to grant Petitioner the same form of consideration can be seen as deliberate discrimination: Ms. Kennon‘s crimes have received different treatment from Petitioner‘s crimes. Petitioner was a 16 year old, black male from the projects in Richmond while Ms. Kennon is a white, middle-class female.
Thus, Townes only alleges that his case “can be seen as deliberate discrimination” (emphasis added). Not only does he never allege that the Board actually did intentionally discriminate against him, but more significantly, Townes never alleges any of the factors that “have been recognized as probative of whether a decisionmaking body was motivated by a discriminatory intent.” Sylvia Dev. Corp., 48 F.3d at 819. For example, Townes does not allege a “consistent pattern” of intentional discrimination by the Parole Board, a “history of discrimination” by the Board, a “specific sequence of events” leading up to the Board‘s ineligibility finding, or “contemporary statements by decisionmakers” evidencing intentional discrimination by the Board. Id. In sum, Townes sets forth no facts—indeed no allegations—supporting the contention that the Board intentionally discriminated against him because of his race, let alone that the state court acted unreasonably in rejecting this claim.
Accordingly, the district court did not err in dismissing Townes‘s equal protection claim.
IV.
For the foregoing reasons, we affirm the judgment of the district court.
AFFIRMED
SHEDD, Circuit Judge, dissenting:
Carl Melvin Townes commenced this habeas action in 2004 while he was a prisoner confined in a Virginia correctional center. In his petition, Townes argued that the state erred by classifying him as ineligible for discretionary parole, and he asked for an order directing the Virginia Parole Board (the “Board“) to grant him parole. However, after the district court dismissed his petition on the merits as frivolous, the Board paroled Townes pursuant to Virginia‘s mandatory parole law. While the majority concludes that Townes’ mandatory parole does not render his appeal moot, I conclude that it does because his claims no longer satisfy Article III‘s redressability requirement.
In essence, what Townes wants and what the majority provides is an advisory opinion. Townes does not argue that we can provide him with any relief that would directly remedy his alleged injury. Rather, he asserts that he would use an opinion from us stating that the Board erred in its parole eligibility determination to help him persuade the Board to exercise its discretion and shorten his current term of parole, thereby obtaining a remedy for his injury. However, the Board‘s decision to terminate a period of parole is guided by discretionary considerations that are wholly distinct from the factors that guided its decision to classify Townes as ineligible for discretionary parole from his earlier incarceration. Therefore, there is nothing in this record to support the conclusion that the Board would be likely to remedy Townes’ injury by shortening his parole if we issued a decision in his favor—a conclusion that we must reach before we can exercise jurisdiction over the merits of his appeal. Accordingly, I dissent.
DIANA GRIBBON MOTZ
UNITED STATES CIRCUIT JUDGE