Nesbit v. Washington , 11 F. App'x 281 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
RICKY NESBIT, 
Plaintiff-Appellant,
v.
MAXINE WASHINGTON; JOHN WILLIAM  No. 01-6177
WADE, JR.; JOHN ALDERMAN, in their
individual and official capacities,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James C. Cacheris, Senior District Judge.
(CA-99-537-AM)
Submitted: May 22, 2001
Decided: June 4, 2001
Before WILKINS and WILLIAMS, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Ricky Nesbit, Appellant Pro Se. Mark Ralph Davis, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellees.
2 NESBIT v. WASHINGTON
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Ricky Nesbit appeals the district court’s order denying relief on his
42 U.S.C.A. § 1983 (West 1994 & Supp. 2000) complaint. Finding no
error, we affirm.
Nesbitt was convicted of first degree murder and two armed rob-
beries.* Upon his incarceration, Nesbitt was classified as eligible for
parole consideration at a future date. In 1998, the Virginia Depart-
ment of Corrections (VDOC) reviewed his parole status, determined
his prior parole-eligible classification was a mistake, and concluded
he was ineligible for parole under the 1982 version of Va. Code Ann.
§ 53.1-151(B1) (current version at Va. Code Ann. § 53.1-151 (Michie
1998)).
Nesbitt filed this civil rights complaint alleging violation of the Ex
Post Facto and Due Process Clauses. Specifically, Nesbit contends
that the Defendants violated his rights by reclassifying him as parole
ineligible, and by applying Va. Code Ann. § 53.1-151(B1) to reach
the determination that he was parole ineligible. At issue are three sep-
arate statutory provisions. First, the 1982 version of § 53.1-151(B1)
provides:
Any person convicted of three separate felony offenses of
murder, rape, or armed robbery when such offenses were
not part of a common act . . . shall not be eligible for parole.
That statute was amended in 1987; the amended statute specifies:
*The offenses involved a murder in Arlington, Virginia, in 1984, an
armed robbery in Alexandria, Virginia, in 1985, and an unrelated armed
robbery in Fairfax, Virginia, in 1985.
NESBIT v. WASHINGTON 3
Any person convicted of three separate felony offenses of (i)
murder, (ii) rape or (iii) robbery by the presenting of fire-
arms or other deadly weapon, or any combination of the
offenses specified in subdivisions (i), (ii) or (iii), when such
transactions were not part of a common act . . . shall not be
eligible for parole.
Va. Code Ann. § 53.1-151(B1) (Michie 1998 & Supp. 2000). Finally,
the 1982 version of Va. Code Ann. § 53.1-151(A)(1) provides that
any person convicted of any three unspecified felonies is parole eligi-
ble.
Nesbit asserts that the 1987 version of subsection (B1) cannot
apply to him because his third qualifying offense occurred prior to
1987. He claims that the Defendants applied the 1987 version of sub-
section (B1), but even if they applied the 1982 version of subsection
(B1), they erred. He contends that because he committed two armed
robberies and one murder, rather than three of any one enumerated
offense, the 1982 version of subsection (B1) cannot apply to him. He
bases his contention on the fact that, in 1987, the statute was amended
to specify that any combination of the enumerated offenses sufficed
to render a defendant parole-ineligible. Because the version of the
statute in effect at the time of his third qualifying offense did not so
specify, he claims that the two statutes cannot have the same mean-
ing.
We conclude that Nesbit’s arguments lack merit. First, as the Vir-
ginia Supreme Court has noted, the pre-1987 versions of § 53.1-
151(B1) are "clear and unambiguous" and plainly indicate that "the
General Assembly intended that felons convicted of the violent
crimes of murder, rape, and robbery be incarcerated for longer periods
of time than felons convicted of less violent crimes." Vaughn v. Mur-
ray, 441 S.E.2d 24, 26 (Va. 1994). The 1987 amendment to the statute
was merely a clarification, and not a substantive change. Accordingly,
under either the 1982 or the 1987 version of the statute, Nesbit was
not eligible for parole, and there has been no violation of the Ex Post
Facto Clause. Further, to the extent that Nesbit challenges the Defen-
dants’ decision to reclassify him as parole ineligible in 1998, even
though he was initially classified as parole eligible, because the stat-
ute in effect at the time of Nesbit’s third qualifying offense rendered
4 NESBIT v. WASHINGTON
him parole ineligible, the Defendants have committed no due process
violation. Vann v. Angelone, 73 F.3d 519, 521 (4th Cir. 1996); see
Hawkins v. Freeman, 195 F.3d 732, 736-37, 750 (4th Cir. 1999)
(finding no due process violation in revocation of erroneously-granted
parole when inmate was returned to prison twenty months after
release).
Accordingly, we affirm the district court’s decision, albeit on dif-
ferent reasoning. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED