Woodby v. Virginia Department of Corrections, 7:15-cv-00256

7:15-cv-00256 | W.D. Va. | Feb 8, 2016

CLERK'S OFFICE

. tJ S. DIST . COURT AT U NO KE, VA FiLED FEB 2 8 2216 IN TH E U NITED STA TES DISTR ICT CO U R T JUL DL BY: , CLERK FOR TH E W ESTERN DISTRICT OF VIRGINIA W CLERK RO A N O K E D IVISIO N JUSTIN SETH W O ODBY, C ivil A ction N o. 7:15-cv-00256 ) ) Petitioner, ) M EM O M ND U M O PIN IO N ) M. ) VIRGINIA DEPARTM ENT OF ) ) C O R REC TIO N S, et aI., By: H on. M ichael F. Urbanski R espondents. ) U nited States D istrict Judge Justin Seth W oodby, a Virginia inmate proceeding pro K , filed a petition for a writ of

habeas corpus ptlrsuant to 28 U.S.C. j 2241 to challenge the Virginia Department of Corrections' (çSVDOC'') calculation of his sentence.Petitioner azgues that his current term of incarceration should be reduced by the amount of time he participated in a court-ordered rehabilitative program while on probation. Respon'dents filed a m otion to dism iss, and Petitioner responded, making the matter ripe for dispositkn. After reviewing the record, the court grants Respondents' m otion to dismiss because Petitioner fails to state a claim for federal habeas relief.

On Jtme 6, 2008, the Bristol City Circuit Court convicted W oodby of breaking and entering, grand larceny, and eluding. The circuit court sentenced W oodby to 18 years' incarceration, suspended that sentence, and im posed three years' probation. On November 7, 201 1, the circuit court determined W oodby violated probation, revoked 18 months of the 18 year sentence, and suspended the new 18 month sentence subject to W oodby's completion of the circuit court's Slv eritas Progrnm .''

The Veritas Program (çGprogram'') is a. Sidrug court'' program nm by the Bristol City Circuit Court for certain probationers. In 2004, the G eneral A ssem bly enacted the Drug Treatm ent Court Act, Code j 18.2-254.1, to enhance èffective treatment progrnms for reducing dnlg use and its im pact on fam ilies and drug-related crim es. A s part of this program , the G eneral A ssem bly designated Gtclrug treatm ent courts'' as ççspecialized court dockets within the existing stnlcttlre of Virginia's court system offering judicial monitoring of intensive treatment and strict supervision of addicts in dnzg and drug-related cases.'' Code j 18.2-254.14E8. The legislation provided that drug treatment court programs could be created by localities under the adm inistrative im plem entation oversight of this Court, pursuant to standards created by a state drug treatment cottrt advisory comm ittee. Code j 18.2-254.1(E), (F). A local jurisdiction creating this progrnm must also have an advisory com mittee that sets policies and procedures for the operation of the program. Code j 18.2-254.146), (H), (1). Potential participants are screened according to eligibility criteria established by the local program . No defendant is entitled to participate in the program and it is not available to every defendant. Code j 18.2-254.1(M). The Drug Treatment Court Act does not mandate specific procedures for the operation of the drug treatment coul't ProgranA.

Hanis v. Commonwealth, 279 Va. 541, 544, 689 S.E.2d 713" date_filed="2010-02-25" court="Va." case_name="Harris v. Com.">689 S.E.2d 713, 715 (2010). W oodby explains that som e of the requirem ents of the Progrnm include; m aking a phone call every day by 7:00 a.m ., returning calls from Progrnm staff within three m inutes, m eeting with Program staffthree days a week, participating in daily dnzg testing, having unamlotmced visits by a probation officer, and being home by 8:00 p.m .

On June 18, 2013, the circuit coul't determ ined that W oodby failed to com ply with conditions of the Program , revoked his probation, and sentenced him to twentptwo months' incarceration. The circuit court did not order that W oodby receive credit for the time he participated in the Program while on probation, and the circuit court and the Supreme Court of Virginia denied W oodby's num erous requests to receive credit for that tim e.

In the federal petition, W oodby argues that he is entitled to have the tim e spent in the Program while on probation credited toward his sentence. W oodby cites to Virginia Code j 53.1-187, titled, (icredit for time spent in confinement while awaiting trial,'' in support. Virginia Code j 53. 1-187 permits the VDOC to deduct çtall time actually spent by the person . . . in a state or local correctional facility awaiting trial or pending an appeal '' from G1a tenn of confinement in a conrctional facility.'' However, Virginia Code j 53.1-187 prohibits deducting any tim e not actua y çt 11 spent in confinement or in detention.''l

Respondents' motion to dismiss must be granted because the tim e W oodby spent in the Progrnm while on probation was not çûactual'' consnem ent or detention. W oodby lived at a private residence, was free from actual incarceration, and enjoyed a conditional liberty interest w hile pM icipating in the Program .

W oodby cites to Charles v. Commonwea1th, 270 Va. 14" date_filed="2005-06-09" court="Va." case_name="Charles v. Com.">270 Va. 14, 613 S.E.2d 432 (2005), to argue that the Progrnm constituted incarceration for which he should be given credit toward his sentence. ln Charles, the Supreme Court of Virginia detennined that a probationer's pm icipation in the tr etention Center Incarceration Progrnm ,'' as defined by Virginia Code j 19.2-316.2, constituted çsincarceration'' such that it extended the period of incarceration beyond that imposed in a sentencing order. Charles, 270 Va. 14" date_filed="2005-06-09" court="Va." case_name="Charles v. Com.">270 Va. at 17, 613 S.E.2d at 433. The petitioner in Charles was forced to live in a detention center with çtm ilitarplike'' supervision of residents. Va. Code j 53.1-67.8. Unlike the ççactual'' incarceration in Charles, W oodby was free to live at a private residence tmder less stringent supelwision during his participation in the Program .

Accordingly, W oodby fails to state a claim that he is in custody in violation of the Constitution or laws or treaties of the United States, and the petition is dismissed. Based upon the court's finding that W oodby has not made the requisite substantial showing of a denial of a constitutional right as required by 28 U.S.C. j 2253(c), a certificate of appealability is denied.

ENTER: This day of February, 2016. # *

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U nited States D istrict Judge l W oodby is not entitled to federal habeas relief to the extent he claims that he is incarcerated in violation of state law, but W oodby's claim concerning credit for time served does implicate the due process clause of the Fourteenth Amendment. See Estelle v. McGuire, 502 U.S. 62" date_filed="1991-12-04" court="SCOTUS" case_name="Estelle v. McGuire">502 U.S. 62, 67-68 (1991); Durkin v. Davis, 538 F.2d 1037" date_filed="1976-03-23" court="4th Cir." case_name="Thomas Harry Durkin v. Jack F. Davis, Director, Dept. Of Corrections">538 F.2d 1037, 1039- 40 (4th Cir. 1976).