Sharon Burnette v. Helen Fahey , 687 F.3d 171 ( 2012 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
SHARON BURNETTE; PAMELA K. 
BURROUGHS; FRANK CARTER, JR.;
EDWARD CONQUEST; DONALD W.
HOFFMAN; MONTY KING, formerly
known as Imond Monty Hicks;
LARRY MACON; MARVIN MCCLAIN;
BENJAMIN PERDUE, JR.; HENRY
STUMP; BARBARA TABOR, Suing on
behalf of themselves and all others
similarly situated,
Plaintiffs-Appellants,
v.
HELEN F. FAHEY, In her capacity as
Chair of the Virginia Parole  No. 11-1324
Board; CAROL ANN SIEVERS, In her
capacity as Vice-Chair of the
Virginia Parole Board; JACKIE T.
STUMP, In his capacity as a
Member of the Virginia Parole
Board; MICHAEL M. HAWES, In his
capacity as a Member of the
Virginia Parole Board; RUDOLPH C.
MCCOLLUM, JR., In his capacity as
a Member of the Virginia Parole
Board,
Defendants-Appellees,

2 BURNETTE v. FAHEY


STEVEN WAYNE GOODMAN,
Amicus Supporting Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert E. Payne, Senior District Judge.
(3:10-cv-00070-REP)
Argued: March 21, 2012
Decided: July 9, 2012
Before NIEMEYER, GREGORY, and FLOYD,
Circuit Judges.
Affirmed by published opinion. Judge Floyd wrote the opin-
ion, in which Judge Niemeyer concurred. Judge Gregory
wrote a dissenting opinion.
COUNSEL
ARGUED: Stephen Atherton Northup, TROUTMAN SAND-
ERS, LLP, Richmond, Virginia, for Appellants. Earle Duncan
Getchell, Jr., OFFICE OF THE ATTORNEY GENERAL OF
VIRGINIA, Richmond, Virginia, for Appellees. ON BRIEF:
Robert A. Angle, Robert M. Luck, III, TROUTMAN SAND-
ERS, LLP, Richmond, Virginia; Abigail Turner, Alex R.
Gulotta, Gail Starling Marshall, LEGAL AID JUSTICE CEN-
TER, Charlottesville, Virginia, for Appellants. Kenneth T.
Cuccinelli, II, Attorney General of Virginia, Stephen R.
McCullough, Senior Appellate Counsel, Charles E. James, Jr.,
Chief Deputy Attorney General, OFFICE OF THE ATTOR-
BURNETTE v. FAHEY 3
NEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellees. Steven W. Goodman, Dillwyn, Virginia, Amicus
Curiae for Appellants.
OPINION
FLOYD, Circuit Judge:
Appellants (the Inmates), eleven inmates in the custody of
the Virginia Department of Corrections (DOC), brought this
action against members of the Virginia Parole Board (the
Board) in their official capacities. The Inmates contend that
the Board has adopted policies and procedures with respect to
parole-eligible inmates imprisoned for violent offenses that
violate the Due Process and Ex Post Facto Clauses of the
United States Constitution. Most notably, they assert that the
Board has implemented an unwritten policy of denying parole
to persons incarcerated for violent offenses. The district court
granted Appellees’ motion to dismiss the complaint, and the
Inmates filed this timely appeal. Because we agree that the
complaint fails to set forth sufficient facts to establish a plau-
sible entitlement to relief under either a due process or ex post
facto theory, we affirm.
I.
A.
Prior to 1994, Virginia law provided for discretionary parole1
of incarcerated offenders. By legislation enacted in 1994, the
1
Discretionary parole is distinct from mandatory parole, a program
under which a prisoner must be released on parole six months prior to the
final release date prescribed by his sentence. See Va. Code Ann. § 53.1-
159. The 1994 legislative changes did not affect the availability of manda-
tory parole. In this opinion, the term "parole" denotes discretionary parole
unless otherwise specified.
4 BURNETTE v. FAHEY
General Assembly abolished discretionary parole for all per-
sons incarcerated for felony offenses committed on or after
January 1, 1995. See Va. Code Ann. § 53.1-165.1. This legis-
lation did not disrupt the availability of discretionary parole
for persons who committed crimes prior to 1995, however.
The Virginia Code entrusts the administration of the discre-
tionary parole system to the Board, and it vests the Board with
broad discretion in carrying out its responsibilities. Section
53.1-136 of the Code obligates the Board to "[a]dopt . . . gen-
eral rules governing the granting of parole and eligibility
requirements, which shall be published and posted for public
review." Id. § 53.1-136(1). And this section further instructs
that the Board "shall . . . [r]elease on parole" parole-eligible
persons who "are found suitable for parole, according to those
rules" adopted by the Board. Id. § 53.1-136(2)(a). But the
Board may not release any person without first conducting a
"thorough investigation . . . into the prisoner’s history, physi-
cal and mental condition and character and his conduct,
employment and attitude while in prison" and "determin[ing]
that his release on parole will not be incompatible with the
interests of society or of the prisoner." Id. § 53.1-155(A). As
a general rule, the Board must consider parole-eligible
inmates on an annual basis, but it may defer subsequent
review for up to three years if an inmate has at least ten years
remaining on his sentence. Id. § 53.1-154.
In addition to discretionary parole, Virginia has a system of
conditional release for geriatric prisoners, which it instituted
in 1995. See id. § 53.1-40.01. This program is available to
prisoners (i) ages sixty-five or older who have served at least
five years of their imposed sentences or (ii) ages sixty or older
who have served as least ten years of their imposed sentences.
Id. Again, the Virginia Code grants the Board discretion to
promulgate regulations implementing the geriatric release
program. See id. The Board’s written policy permits it to
release an inmate under the geriatric release program only
upon a finding of "compelling reasons."
BURNETTE v. FAHEY 5
B.
The Inmates allege that, since the abolition of parole for
new felony offenders in 1995, the Board has instituted poli-
cies and procedural changes that effect a de facto abolition of
parole for parole-eligible persons convicted of violent
offenses, defined in the complaint as "murder, rape, sodomy,
robbery, assault, abduction, use of a weapon, and any other
felony that the Board considers to be violent."
As the Inmates observe, the Board has ceased utilizing a
risk assessment tool that was in use prior to 1995. In addition,
the Board has eliminated face-to-face interviews of prisoners
by Board members, supplanting them with interviews, often
via video, by parole examiners who then submit reports to the
Board through an electronic database. Board members also
have stopped meeting in person; instead, they circulate an
inmate’s file before voting electronically to grant or deny
parole. And, pursuant to a 2002 rule change, the Board has
decreased the frequency of its meetings with inmates’ families
and representatives, who now may schedule such meetings no
more than once every two years and may meet with only one
of the five Board members.
In addition to these procedural changes, the Inmates note
that, in 1998, the Board repealed prior rules governing parole
that it had published in the Virginia Administrative Code. In
place of these rules, it distributed a "Policy Manual." This
Manual outlines fourteen factors that, according to the Board,
guide its discretion in parole decisions. The nature of the
offense of incarceration is one such factor, along with consid-
erations of rehabilitation and the risk posed by the prisoner to
himself and to society upon his release.
Despite the multiplicity of factors identified in this Manual,
the Inmates allege that, in practice, the Board "has relied pri-
marily, if not exclusively, on the ‘serious nature and circum-
stances of the crime’ when making parole determinations with
6 BURNETTE v. FAHEY
regard to inmates convicted of violent offenses" and has failed
to give "fair or meaningful consideration to other factors in its
Policy Manual." They claim that the Board’s procedural
changes reflect its choice to consider only the nature of the
original offense. The exclusive reliance on this consideration,
the Inmates aver, "has resulted in virtually automatic and
repeated denials of parole for inmates convicted of violent
offenses, even when the other factors in the Manual and the
statute would favor release."
C.
The Inmates cite extensive statistical evidence to support
their claim of a de facto abolition of parole for those con-
victed of violent offenses. Prior to the elimination of discre-
tionary parole for new offenders, they note, Virginia’s parole-
grant rate—the percentage of those considered who were
granted parole—exceeded 40%. In 1989, 42% of those con-
sidered were released on parole, and from 1990 to 1993, the
parole-grant rate averaged over 41%. As a result of this rela-
tively high grant rate, offenders generally did not serve the
entire length of their sentences: in 1993, a person convicted
of a violent offense in Virginia served, on average, only 38%
of his total sentence. And, according to the Inmates, these
numbers led participants in the court system, including defen-
dants and sentencing judges, to anticipate early release.
Since 1995, however, Virginia has seen a precipitous
decrease in the parole-grant rate. The rate for all parole-
eligible inmates dipped to 18% in fiscal year (FY) 1996. It
further declined to 8% in FY 2000 and to less than 5% in FY
2008. Violent offenders face still lower parole-grant rates: the
rate for inmates convicted of violent offenses ranged between
3.7% and 2.1% per year from FY 2002 to FY 2008. And
many of those granted parole were nearing their mandatory
parole release dates, often having "already served more than
85% of the time before their mandatory parole release
date[s]."
BURNETTE v. FAHEY 7
The Inmates contend that one factor, the seriousness of the
offense, has played the primary or exclusive role in motivat-
ing the Board to deny parole to violent offenders. In FYs 2006
and 2007, for example, the Board cited "‘the serious nature
and circumstances of the crime’ or words to that effect" as the
sole reason for its decision in approximately 45% of all parole
denials.
According to the Inmates, this focus on the seriousness of
the offense has also infected the Board’s administration of the
geriatric release program. They allege that since the program
went into effect in 1995, the Board has granted only seven
geriatric release petitions. And it has named the serious nature
of the original offense as the reason for 95% of the denials.
D.
The Inmates2 are among those parole-eligible inmates con-
victed of violent offenses committed prior to January 1, 1995,
who have been denied parole. Each was convicted of at least
one count of murder. Their sentences range from eighty years’
imprisonment to multiple life terms, and each has served at
least twenty-three years of his or her term of imprisonment.
While in prison, many of the Inmates have successfully com-
pleted or participated in rehabilitative, vocational, educa-
tional, or employment programs. Yet despite their largely
positive institutional records and limited prior criminal
records, the Board has denied parole to each Inmate on multi-
ple occasions.
The Inmates allege the following with respect to their indi-
vidual histories and experiences with the Board:
1. Sharon Burnette pled guilty to murder and use
2
Appellants sought to represent a class of similarly situated individuals,
but the district court had not yet certified a class at the time it dismissed
the complaint.
8 BURNETTE v. FAHEY
of a firearm in connection with the 1981 killing
of a gas station attendant. For these crimes, she
received a sentence of life plus one year. Before
this, her criminal record reflected only a misde-
meanor shoplifting conviction. She has had one
institutional infraction during her period of
incarceration, a 1982 charge for failing to stand
for count. Notwithstanding this record, the
Board has denied Burnette parole twelve times,
each time citing only "the ‘serious nature and
circumstances of the crime’ or words to that
effect."
2. Pamela Burroughs pled guilty to murder and
robbery for the killing of a robbery victim in
1985. She received a life term for murder, a sus-
pended sentence of thirty years for robbery, and
a term of five years for drug distribution
(charged under a separate indictment). Bur-
roughs had only one other conviction, for tres-
passing. While in prison, she has received one
institutional infraction, for sleeping through
count. But she has been denied parole seven
times, and the Board has given a single reason
for these denials, the "‘serious nature and cir-
cumstances of the crime’ or words to that
effect."
3. Frank Carter, Jr., received an eighty year sen-
tence for the 1976 killing of his former girl-
friend and her boyfriend. His prior criminal
record included numerous misdemeanors and a
juvenile offense, and he committed an institu-
tional infraction for improper consensual con-
duct with his wife in 1987. The Board has
denied Carter parole twenty-three times, citing
the seriousness of his offenses as the only justi-
BURNETTE v. FAHEY 9
fication, except in 1988, when it also referenced
his "poor institutional conduct."
4. Edward Conquest had no prior criminal record
at the time he was convicted and sentenced to
two life terms for first-degree murder and rob-
bery, committed in 1975. His last institutional
infraction, disobeying a direct order, occurred in
1989, and his behavior while in prison has been
described as "exemplary." Nevertheless, the
Board has declined to parole him on twenty-two
occasions, each time citing the serious nature
and circumstances of his crimes.
5. Donald Hoffman pled guilty to murder, which
he committed in 1975. The victim previously
had been raped by his codefendant. For this
crime, Hoffman received a life sentence. Prior to
this conviction, he had been convicted of simple
assault as a juvenile, and another assault charge
against him had been dismissed upon accord and
satisfaction. He has been cited for one institu-
tional infraction, in 2002, for improper consen-
sual conduct with his wife. Although DOC
officials have recommended him for parole,
Hoffman has been denied parole fourteen times
based only on the seriousness of his crimes.
6. Monty King was sentenced to life imprisonment
for felony murder and seven years’ imprison-
ment for robbery. The charges arose from the
1986 beating death of an elderly woman during
an automobile theft. He was also sentenced to
five years for a separate attempted robbery. He
had no prior criminal record, and he has com-
mitted no institutional infractions since a 1994
charge of sleeping through count. Yet the Board
has denied parole to King seven times, each time
10 BURNETTE v. FAHEY
providing the same reason, the seriousness of his
offenses.
7. Larry Macon committed his offenses in 1976.
He was convicted of murder and robbery, for
which he received sentences of life and nine
years’ imprisonment, respectively. His prior
criminal history consisted of three minor juve-
nile offenses and an adult gambling offense.
While in prison, he has had "a few minor institu-
tional infractions," the most recent of which
occurred in 2006. He has been denied parole
eighteen times, and the Board has justified these
denials solely by reference to the seriousness of
his crimes.
8. Marvin McClain pled guilty to murder and rob-
bery in 1973, prior to which his record consisted
of two juvenile offenses. The complaint does not
specify the length of his sentence but avers that
McClain has been incarcerated for more than
thirty-six years. During this time, he has
incurred six disciplinary infractions and was
convicted of a new crime for possessing a home-
made knife. The Board has denied McClain
parole twenty-one times, citing the seriousness
of the crimes and, occasionally, McClain’s con-
viction of a crime while incarcerated.
9. Benjamin Purdue, Jr., was sentenced to two life
terms plus twenty-one years for the malicious
wounding of his former wife, the murder of her
parents, and related firearms offenses. He com-
mitted these offenses in 1983. At the time of
conviction, he had no prior criminal history, and
he has incurred no infractions while imprisoned.
On ten occasions, the Board has declined to
release Purdue on parole. Each time, it has pro-
BURNETTE v. FAHEY 11
vided the same reason, the seriousness of the
crimes.
10. After pleading guilty to the 1980 murder of a
bootlegger, Henry Stump was sentenced to a
term of ninety-three years’ imprisonment. His
prior criminal record consisted of a conviction
for auto theft as a juvenile and public intoxica-
tion charges. While serving his sentence,
Stump has committed two disciplinary infrac-
tions, for possessing dice in 1991 and an extra
pair of reading glasses in 2008. He also pled
guilty to possession of controlled substances
for two incidents occurring during his incarcer-
ation. The Board has declined to parole Stump
on eighteen occasions. In doing so, it has
always cited the seriousness of the crime and,
several times, it has also referenced Stump’s
commission of crimes while incarcerated.
11. In 1981, Barbara Tabor was convicted of fel-
ony murder, for which she received a sentence
of life plus twenty-one years. Her criminal his-
tory at the time included only one prior convic-
tion, for transporting stolen property. She has
been charged with three minor disciplinary
infractions while in prison. The Board has
denied parole to Tabor eleven times. The sole
reason given for each denial is the seriousness
of the crime.
In sum, the Inmates claim that, in evaluating a prisoner for
parole, the Board has replaced fair and meaningful review of
the fourteen Policy Manual factors with consideration of only
one factor, the offense for which the prisoner is incarcerated.
Thus, they assert that their limited prior criminal histories and
generally outstanding institutional records cannot alter the
outcome of the Board’s determination because, for certain
12 BURNETTE v. FAHEY
violent crimes, the Board has replaced the exercise of discre-
tion with the automatic denial of parole. According to the
Inmates, the Board fails to consider violent offenders as indi-
viduals; instead, it effectively applies the 1994 legislative
changes retroactively to eliminate discretionary parole for
parole-eligible violent offenders.
II.
The Inmates brought suit, asserting that the Board’s policy
changes—particularly its alleged de facto abolition of
parole—violate their rights under the Due Process Clause and
the Ex Post Facto Clause of the United States Constitution.
The district court granted the Board’s motion to dismiss the
complaint.
Analyzing the due process claim, the district court first rec-
ognized that the Inmates have a limited constitutional interest
in parole consideration derived from Virginia law. But the
court found that the complaint’s allegations showed that the
Board afforded the Inmates sufficient process to satisfy this
interest by providing each Inmate with a constitutionally valid
reason for the denial of parole.
In addition, the district court found that the complaint’s fac-
tual allegations failed to support the conclusion that the Board
has effectively eliminated parole for inmates convicted of vio-
lent offenses. Of note, the Inmates’ statistical evidence
showed that in 55% of cases the denial of parole was based
on reasons other than just the serious nature and circum-
stances of the original offense. Moreover, according to this
data, the Board continued to parole between 120 and 230 vio-
lent offenders each year, demonstrating that parole remained
attainable for such inmates. And the dwindling parole-grant
rates could be explained by the shrinking pool of parole-
eligible individuals. The district court reasoned that those per-
sons best suited for parole were released each year, but due
to the abolition of discretionary parole for new felony offend-
BURNETTE v. FAHEY 13
ers, no new inmates were becoming eligible for parole.
Hence, each year the Board considered a smaller pool of
potential parolees, less suitable for release than those consid-
ered in the past. The allegations, the district court concluded,
failed to state a plausible claim for a due process violation.
The district court likewise found the Inmates’ allegations
with respect to the Ex Post Facto Clause lacking. The
Inmates’ statistical allegations undermined their assertion that
the Board has imposed a de facto rule precluding inmates con-
victed of violent offenses from parole. Thus, the district court
concluded that, at most, the Inmates were complaining that
the Board had become harsher in exercising its discretion, and
because the relevant statutes had always authorized the Board
to adopt a stricter stance, the pleadings were insufficient to
support an ex post facto claim.
III.
"We review de novo a district court’s decision to dismiss
for failure to state a claim, assuming all well-pleaded, non-
conclusory factual allegations in the complaint to be true."
Aziz v. Alcolac, Inc., 658 F.3d 388, 391 (4th Cir. 2011). To
survive a Rule 12(b)(6) motion, a complaint must allege facts
sufficient "‘to raise a right to relief above the speculative
level,’ thereby ‘nudg[ing] the[ ] claims across the line from
conceivable to plausible.’" Id. (first alteration in original)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570
(2007)). "Where a complaint pleads facts that are ‘merely
consistent with’ a defendant’s liability, it ‘stops short of the
line between possibility and plausibility of ‘entitlement to
relief.”" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 557).
In undertaking this review, although we must accept the
truthfulness of all factual allegations, we need not assume the
veracity of "bare legal conclusions." Aziz, 658 F.3d at 391.
Therefore, like the district court, we begin our analysis by dif-
14 BURNETTE v. FAHEY
ferentiating between the Inmates’ factual allegations and legal
conclusions. The allegations with respect to the statistics on
parole release and the Inmates’ histories and experiences with
the Board are factual. As such, we accept them as true. But
we will accept the conclusions the Inmates draw from these
facts—that the Board has ceased exercising its discretion and,
instead, denies parole automatically due to the crime of incar-
ceration—only to the extent they are plausible based on the
factual allegations.
A.
The Fourteenth Amendment’s Due Process Clause guards
against unlawful deprivations of life, liberty, or property. U.S.
Const. amend. XIV, § 1. Thus, in analyzing the Inmates’ due
process claim, we first must consider whether, and to what
extent, they have a protectible interest under this Clause. See
Greenholtz v. Inmates of the Neb. Penal & Corr. Complex,
442 U.S. 1, 7 (1979); Slezak v. Evatt, 21 F.3d 590, 594 (4th
Cir. 1994). If the Inmates have asserted a protectible interest,
we then determine whether they have sufficiently alleged that
the Commonwealth failed to afford them the minimum proce-
dural protections required by the Fourteenth Amendment in
depriving them of this interest. See Morrissey v. Brewer, 408
U.S. 471, 481 (1972); Slezak, 21 F.3d at 593.
"A liberty interest may arise from the Constitution itself" or
"from an expectation or interest created by state laws or poli-
cies." Wilkinson v. Austin, 545 U.S. 209, 221 (2005). An "ab-
stract . . . desire" or "unilateral expectation" is insufficient to
create a protectible interest. Greenholtz, 442 U.S. at 7 (quot-
ing Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577
(1972)) (internal quotation marks omitted). Rather, the Due
Process Clause protects only those interests to which an indi-
vidual has a "legitimate claim of entitlement." Id. (quoting
Roth, 408 U.S. at 577) (internal quotation marks omitted). It
is well-established in the context of parole that "[t]here is no
constitutional or inherent right of a convicted person to be
BURNETTE v. FAHEY 15
conditionally released before the expiration of a valid sen-
tence." Id. Accordingly, to the extent the Inmates enjoy a pro-
tectible interest in parole, this interest must find its roots in
rights imparted by Virginia law.
The Inmates assert, and the Board concedes, that Virginia
law gives rise to a limited interest in consideration for parole,
but not in parole release. Specifically, the Virginia Code man-
dates that the Board must adopt rules governing the granting
of parole and eligibility for parole and that it must release eli-
gible persons who it finds suitable for parole under these
rules. Va. Code Ann. § 53.1-136(1)–(2)(a). Because the deci-
sion whether to grant parole is a discretionary one, "a prisoner
cannot claim entitlement and therefore a liberty interest in the
parole release." Gaston v. Taylor, 946 F.2d 340, 344 (4th Cir.
1991) (en banc); see also Vann v. Angelone, 73 F.3d 519, 522
(4th Cir. 1996). This is true even if state officials consistently
have exercised their discretion to grant release in the past: "A
constitutional entitlement cannot be created . . . merely
because a wholly and expressly discretionary state privilege
has been granted generously in the past." Hill v. Jackson, 64
F.3d 163, 170 (4th Cir. 1995) (quoting Conn. Bd. of Pardons
v. Dumschat, 452 U.S. 458, 465 (1981)) (internal quotation
marks omitted). But, as the Board acknowledges, state law
"giv[es] to a [parole-eligible] prisoner the right for parole con-
sideration at a specified time." Gaston, 946 F.2d at 344; see
also Hill, 64 F.3d at 170.
Once a state has "create[d] a liberty interest, the Due Pro-
cess Clause requires fair procedures for its vindication."
Swarthout v. Cooke, 131 S. Ct. 859, 862 (2011) (per curiam).
Thus, although a state is under no obligation to offer parole,
once it has done so, we "will review the application of [these]
constitutionally required procedures." Id. But we are hard-
pressed "to imagine a context more deserving of federal defer-
ence than state parole decisions." Vann, 73 F.3d at 521. Thus,
in the parole context, "the procedures required are minimal."
Swarthout, 131 S. Ct. at 862.
16 BURNETTE v. FAHEY
In prior challenges to Virginia’s discretionary parole sys-
tem, we determined that, "[a]t most, . . . parole authorities
must ‘furnish to the prisoner a statement of its reasons for
denial of parole.’" Vann, 73 F.3d at 522 (quoting Franklin v.
Shields, 569 F.2d 784, 801 (4th Cir. 1978) (en banc)). Beyond
this, we have declined to hold that, as a constitutional matter,
each prisoner must "receive a personal hearing, have access
to his files, or be entitled to call witnesses in his behalf to
appear before the Board." Franklin, 569 F.2d at 800.
The Inmates acknowledge that each time they were denied
parole, the Board provided a reason or reasons for its denial.
Typically, the reason given has been "‘the serious nature and
circumstances of the crime’ or words to that effect." The
Inmates concede that this is a valid reason for the denial of
parole. Moreover, although they object to a number of proce-
dural changes that have occurred since the abolition of discre-
tionary parole in 1995, the Inmates had no entitlement to the
individual procedures.
The Inmates nonetheless assert that the Board has denied
them due process because it has failed to consider them for
parole in a fair and meaningful manner. That is, they argue
that the Board has disregarded its statutory mandate by failing
to determine whether a prisoner is suitable for parole through
an individual analysis of the factors identified in the Policy
Manual. They contend the Board, instead, has established a de
facto rule denying parole to persons imprisoned for violent
offenses.
This argument falters, however, because the facts alleged in
the complaint do not plausibly support this conclusion. As the
district court ably explained, the statistical allegations show
that the Board continues to grant parole to violent offenders,
though at lower rates than in the past. The Inmates allege that
in each year from FY 2002 through FY 2008, the Board
released on parole between 3.7% and 2.1% of parole-eligible
inmates incarcerated for violent offenses. This correlates to
BURNETTE v. FAHEY 17
between 120 and slightly more than 230 inmates per year. In
addition, according to the complaint, the seriousness of the
offense was the sole reason given in 45% of parole denials,
meaning that in more than half of denials the Board provided
another reason—either instead of or in addition to this fac-
tor—to explain its decision.
These facts indicate that the Board was making individual
determinations with respect to violent offenders. It was releas-
ing numerous such offenders despite the crimes of which they
were convicted. And, in many cases, it was not only consider-
ing but also relying on reasons other than the seriousness of
the crime and its attendant circumstances in deciding to deny
parole.
The Inmates have suggested that the Board is considering
illegitimate factors in deciding to release some violent offend-
ers but not others. They have offered only speculation in sup-
port of this view, however. In the absence of facts to the
contrary, we cannot presume that the Board has failed to con-
form to constitutional requirements and its statutory mandate,
see Garner v. Jones, 529 U.S. 244, 256 (2000). Here, the
Inmates’ statistical allegations fail to provide the necessary
facts.
The allegations regarding the Inmates’ individual circum-
stances fare no better. According to the complaint, each of the
Inmates had little or no criminal history at the time of his or
her conviction of the offense of incarceration, and many have
demonstrated consistently excellent institutional behavior.
Many have successfully participated in rehabilitative, educa-
tional, vocational, or like programs while in prison. Some
have garnered the support of counselors, DOC officers, and
others in seeking parole. Nevertheless, the Board has refused
to release them based on the seriousness of their crimes.
Indeed, for eight of the eleven Appellants, this factor, the "se-
rious nature and circumstances of the crime" (or like words),
18 BURNETTE v. FAHEY
has been the sole reason given in explaining repeated parole
denials.3
Yet we cannot infer from these facts that the Board is fail-
ing to consider each Inmate individually, according to the rel-
evant factors, when making these parole determinations. Each
of the Inmates was convicted of a very serious crime or
crimes, for which he or she received a lengthy sentence. It
appears from the complaint that the lightest sentence given to
any of the Inmates was eighty years’ imprisonment. It would
be well within the Board’s discretion to consider such a pris-
oner holistically and nevertheless to determine that he or she
has not served a sufficiently lengthy sentence in light of the
grave crime, notwithstanding an otherwise clear criminal his-
tory and superlative institutional conduct. Although the ulti-
mate result of this decisionmaking process would be to deny
parole based solely on the seriousness of the prisoner’s crime,
the process and decision would comply fully with constitu-
tional demands.
Here, the factual allegations do not demonstrate that the
Board has replaced this type of individual consideration with
a de facto rule rejecting violent offenders. Simply put, the
Board’s declination to grant parole to the Inmates—even
repeatedly—based on the seriousness of their offenses cannot
show that it has failed to consider other factors.4
3
This is true for Burnette (twelve denials), Burroughs (seven denials),
Conquest (twenty-two denials), Hoffman (fourteen denials), King (seven
denials), Macon (eighteen denials), Purdue (ten denials), and Tabor
(eleven denials).
4
That the Board has abandoned procedures, including a risk assessment
tool and in-person interviews by Board members, which the Inmates assert
would assist in the consideration of these other factors also fails to prove
that it is considering only the offense itself. For example, the Board may
consider a prisoner’s prior criminal record and institutional history without
these tools. And that its procedures may have become more technologi-
cally and electronically based does not indicate that the Board’s review
lacks substance.
BURNETTE v. FAHEY 19
Ultimately, the Inmates have presented only speculation
that the Board has imposed a bar against parole for violent
offenders. But without factual allegations supporting such an
inference, we cannot presume that the Board is failing to "fol-
low[ ] its statutory commands and internal policies in fulfill-
ing its obligations." Id. The Inmates, therefore, have failed to
show a plausible entitlement to relief as required under the
Iqbal-Twombly pleading standard.5 Consequently, we will
affirm the district court’s dismissal of the due process claim.
B.
The Inmates next assert that the Board has effected an ex
post facto enhancement of the punishment for their crimes, in
violation of the United States Constitution. This claim, too,
falls short.
The Ex Post Facto Clause prevents a state from "pass[ing]
any ‘ex post facto Law.’" Warren v. Baskerville, 233 F.3d
204, 207 (4th Cir. 2000) (quoting U.S. Const. art. I, § 10, cl.
5
The dissent urges that we have adopted a hyperliteral interpretation of
our due process precedent that would permit, for example, the Board to
deny parole to all eligible inmates using a form letter citing the nature and
circumstances of the offense. Post at 24 & n.1. With respect, we note that
we have done nothing of the sort. We merely find that our precedent dic-
tates that the Inmates have no due process right to the specific procedures
the Board has altered or eliminated since 1994.
In regard to the Inmates’ assertion that the Board is failing to exercise
discretion and is considering only the offense, without looking to other
factors, in deciding to deny parole, we reject this claim because the
Inmates have failed to allege adequate facts establishing that the Board is
doing so. As explained above, we, unlike the dissent, do not think that the
allegations regarding the Board’s procedural changes combined with the
denial of parole to these plaintiffs create a plausible—rather than merely
possible—inference that the Board is looking at only one factor, particu-
larly in light of the discordant implications of the statistical allegations.
Thus, we have no occasion in this case to consider whether and to what
extent Virginia law creates a right, protected under the Due Process
Clause, to the consideration of multiple factors in parole determinations.
20 BURNETTE v. FAHEY
1). Among other things, this Clause "bar[s] enactments which,
by retroactive operation, increase the punishment for a crime
after its commission." Garner, 529 U.S. at 249–50. To state
a claim for a violation of this provision, a plaintiff must plead
facts showing the retroactive application of a new rule that
"by its own terms" or through "practical implementation"
creates a "significant risk" of extending the period of incarcer-
ation to which he is subject. Id. at 255.
Assuming the Ex Post Facto Clause applies to the Board’s
policy changes,6 the Inmates have failed to identify a new pol-
6
As we observed in Warren, the Ex Post Facto Clause, by its text,
applies only to "laws." 233 F.3d at 207. Accordingly, we have limited its
scope to enactments of the legislature and to "legislative rules," i.e., rules
promulgated by administrative agencies pursuant to a delegation of legis-
lative authority. See United States v. Ellen, 961 F.2d 462, 465 (4th Cir.
1992). We have found that administrative policies that merely articulate
an agency’s interpretation of a statute, however, are not subject to the ex
post facto limitation. See id. Accordingly, in Warren, we concluded that
where a state parole board "made a policy decision that was within the
parameters of existing state law," no cause of action could arise under the
Ex Post Facto Clause. 233 F.3d at 208 (assessing a new policy of the Vir-
ginia Parole Board).
The Inmates contend that we abandoned this distinction in United States
v. Lewis, 606 F.3d 193 (4th Cir. 2010), in which we found an ex post facto
violation due to the retroactive application of a new version of the Federal
Sentencing Guidelines, notwithstanding the Guidelines’ discretionary
nature. They cite our statement in Lewis that, in Garner v. Jones, "the
Supreme Court ‘foreclosed [a] categorical distinction between a measure
with the force of law,’ on the one hand, and discretionary guidelines, on
the other." Id. at 202 (alteration in original) (quoting Fletcher v. Reilly,
433 F.3d 867, 876 (D.C. Cir. 2006)). But in Lewis we further recognized
the unique role of the Sentencing Guidelines, which, although not "facially
binding," function as "the starting point and the initial benchmark" in fed-
eral sentencing. Id. at 200 & n.8 (quoting Gall v. United States, 552 U.S.
38, 49 (2007)) (internal quotation marks omitted). In addition, our deci-
sion in Warren postdated that of the Supreme Court in Garner. Garner,
529 U.S. 244 (decided Mar. 28, 2000); Warren, 233 F.3d 204 (decided
Nov. 13, 2000). And we recently reiterated the distinction between a mere
change to an administrative policy in effect at the time of the original
BURNETTE v. FAHEY 21
icy creating a significant risk of increased punishment. Their
complaint identifies a variety of changes to parole review pro-
cedures, including the Board’s decisions to cease using a risk
assessment tool, to enlist parole examiners to perform inter-
views, and to vote electronically. But the Inmates have failed
to plead facts showing a causal link between these procedural
changes and a significant risk of extended punishment.
By their terms, these procedures do not impact the length
of the Inmates’ period of imprisonment, so the Inmates must
point to the implementation of the procedures. Although the
Inmates complain that parole-grant rates have decreased since
1995, they have not alleged facts demonstrating that this
decrease may be ascribed to any procedural change. The mere
fact that the Board implemented these procedural changes
during the same multi-year period that the rate decreased does
not produce a plausible inference of a causal connection, par-
ticularly as there are numerous other explanations for the
decreasing parole-grant rate. As the district court noted, some
of this decrease may be understood to reflect the shrinking
pool of eligible offenders, who the Board may have found to
be less suitable for parole. More notably, the Inmates them-
selves press an alternative reason for the declining parole-
offense and the retroactive application of a new statutory or regulatory
rule. See Waddell v. Dep’t of Corr., No. 11-7234, slip op. at 19–20 (4th
Cir. May 25, 2012) (agreeing with the state court that the petitioner’s ex
post facto claim lacked merit because "no legislative or regulatory enact-
ment ever altered" his sentence). We are therefore disinclined to find that
Lewis upset our holding in Warren regarding the applicability of the Ex
Post Facto Clause to the Board’s policies.
But even assuming, as we do here, that the Clause applies to changes
to the Board’s policies and procedures, the Inmates have failed to allege
sufficient facts to establish plausibly that a new Board policy—as opposed
to a mere change in the manner in which the Board exercises its discre-
tion—has produced a substantial risk of increased punishment. Accord-
ingly, we need not fully explore which, if any, of the Board’s changes are
subject to the ex post facto limitation.
22 BURNETTE v. FAHEY
grant rate: they urge that instead of following its statutory
mandate to determine suitability for parole based on the mul-
tifarious factors identified in the Policy Manual, the Board has
adopted a policy of refusing parole to violent offenders based
solely on their offenses. And the complaint cites the Board’s
procedural changes as evidence that the Board is disregarding
other relevant factors.
It is this alleged policy change—the de facto abolition of
discretionary parole—that is at the crux of the Inmates’ com-
plaint. But, as discussed with respect to the Inmates’ due pro-
cess claim, it is implausible based on the facts alleged that the
Board has adopted any such policy. The factual allegations
suggest that the Board has become harsher with respect to
violent offenses, but they do not indicate that the Board has
implemented a de facto prohibition of parole for persons con-
victed of these offenses. In the absence of such facts, we can-
not reasonably infer that the Board is failing to exercise its
discretion as required by state law. See Garner, 529 U.S. at
256.
Ultimately, the Inmates’ complaint supports, at most, the
inference that the Board is exercising its discretion, but that,
in doing so, the Board is taking a stricter view towards violent
offenders than it had in the past. This shift in the manner in
which it exercises its discretion, however, does not implicate
the Ex Post Facto Clause. As the Sixth Circuit has explained,
where the statutory scope of a parole board’s discretion is
unchanged from the time a prisoner committed his offense,
"there was always the possibility the Board would exercise its
discretion in a way that would result in fewer paroles and lon-
ger prison terms." Foster v. Booker, 595 F.3d 353, 362 (6th
Cir. 2010). Inmates may have some ex post facto-protected
interest in the rules that guide and govern the exercise of dis-
cretion, see Garner, 529 U.S. at 253, but they do not have a
protected interest in the exercise of discretion itself. Thus, that
the Board may have decided "to get tougher" on certain
crimes "hardly amount[s] to an ex post facto violation"
BURNETTE v. FAHEY 23
because "it was within the . . . Board’s discretion to get
tougher." Foster, 595 F.3d at 362.
We should not and will not "micromanage[ ]" state parole
systems through the Ex Post Facto Clause. Warren, 233 F.3d
at 208 (quoting Garner, 529 U.S. at 252) (internal quotation
marks omitted). In the instant action, the Inmates have alleged
facts indicating only that, in exercising its discretion, the
Board has opted to adopt a harsher tack with respect to violent
offenders. This is not actionable.
IV.
We are sympathetic to the challenges faced by the Inmates
in bringing these claims and the lack of information about the
Board’s internal workings at their disposal. Nevertheless, they
are not relieved of their obligation under the Iqbal-Twombly
pleading standard to allege facts demonstrating a plausible,
not merely possible, entitlement to relief. Because they have
failed to meet this obligation, dismissal of the complaint was
appropriate. For this reason, we affirm the judgment of the
district court.
AFFIRMED
GREGORY, J., dissenting:
The Court adheres today to a rigidly formalistic view of the
Due Process Clause that provides no real protection for the
well-established liberty interest Virginia inmates have in
parole consideration. For this reason, I respectfully dissent.
I.
The majority and I are in agreement on several points.
There is no independent due process right to parole, e.g.,
Greenholtz v. Inmates of the Neb. Penal & Correctional Com-
plex, 442 U.S. 1, 7 (1979), nor is there one in being consid-
24 BURNETTE v. FAHEY
ered for parole, Hill v. Jackson, 64 F.3d 163 (4th Cir. 1995).
However, a State can create such a liberty interest, id. at 170,
and Virginia has done so here, vesting in its inmates a right
to parole consideration through the passage of its parole stat-
ute, id. Finally, the Due Process Clause requires that the
parole board ("the Board") furnish an inmate with a written
explanation for its denial of parole. E.g., Bloodgood v. Gar-
raghty, 783 F.2d 470, 473 (4th Cir. 1986); Franklin v. Shields,
569 F.2d 784, 800 (4th Cir. 1976) (en banc).
The majority and I part ways on the question of whether the
Due Process Clause provides any additional protections to
inmates, like the Appellants, who have a liberty interest in
parole consideration. While a hyper-literal interpretation of
this Court’s precedent might suggest that nothing beyond a
written explanation is required,1 we have never before held
this to be the case,2 and we should not do so today.
While the majority cites to Franklin v. Shields, Bloodgood
v. Garraghty, and Vann v. Angelone for the proposition that
the Board need only furnish a written explanation for denial,
these cases contemplated the Board doing more than applying
one factor to every case it hears. In Bloodgood we held that
we "will not assume that the Board relied on possibly invalid
1
This interpretation is both hyper-literal and leads to absurd results.
Suppose the Due Process Clause mandates only that the Board furnish a
written explanation for its denial. If that were so, then the Board could
simply print out several hundred copies of a form letter denying parole on
generic grounds (for example, "the nature and circumstances of the
offense") and send them out to each inmate as he or she comes up for
consideration—all without ever looking at the inmate’s file. Such a for-
malistic view of the Due Process Clause cannot be countenanced.
2
In Strader v. Troy, 571 F.2d 1263, 1266 (4th Cir. 1978), we held that
the Board may not consider previous convictions if they were obtained in
violation of the inmate’s right to counsel. While there the Sixth Amend-
ment operated as an independent constraint on the Board, Strader never-
theless demonstrates that the Constitution imposes additional requirements
beyond a written explanation.
BURNETTE v. FAHEY 25
factors" in makings its decisions. Bloodgood, 783 F.2d at 475.
This of course presupposes that there are invalid factors—that
the Due Process Clause requires not just a written explanation
for the denial, but that the denial be based on valid factors. In
Vann, we recognized that parole consideration consists of
more than the rote application of a single factor: "Most parole
decisions involve a considerable degree of discretion. Hence,
parole authorities must investigate and weigh numerous fac-
tors including [the inmate’s] history, mental and physical con-
dition, attitude, and compatibility with the ‘interests of
society.’" Vann v. Angelone, 73 F.3d 519 (4th Cir. 1996)
(quoting Gaston v. Taylor, 946 F.2d 340, 344 (4th Cir. 1991)).
Similarly, in Bloodgood we said, "The board’s inquiry is not
the legal foundation of some past conviction, but a prediction
of a prisoner’s prospects for a law-abiding life." Bloodgood,
783 F.2d at 473 (citing Franklin, 569 F.2d at 800). Thus we
have implied that the Board must consider at least some fac-
tors beyond the nature of the offense.
I emphasize the distinction between the question of whether
a factor is valid and whether it is sufficient. The nature and
circumstances of the underlying offense is indisputably a
legitimate factor that may be considered, but it is not enough
standing alone. The Due Process Clause requires that the
Board consider additional factors as well. Whether the Due
Process Clause requires that specific additional factors be con-
sidered, it is enough here to note that the Board and the State
of Virginia have substantial discretion in determining how it
will weigh the factors in making the final decision whether to
grant parole. But to hold that the rote use of the nature of the
underlying offense by itself is sufficient transmogrifies the
parole process into an empty formality.
II.
The Appellants’ complaint alleges facts that render plausi-
ble the inference that the Board only considers the nature and
circumstances of the crime in deciding whether to grant or
26 BURNETTE v. FAHEY
deny them parole. See Bell Atl. Corp. v. Twombly, 550 U.S.
544 (2007). Appellants allege that after Virginia’s General
Assembly abolished parole for all newly incarcerated inmates
in 1995, the Board instituted a number of changes to its proce-
dures. Prior to 1995, the Board used a risk assessment tool in
making parole determinations; but after the abolition of parole
the Board discontinued use of the tool. J.A. 21. The Board has
also abandoned its practice of conducting face-to-face inter-
views with parole-eligible inmates. J.A. 23. It has similarly
discouraged wardens, guards, and other prison officials from
providing it with information about eligible inmates, J.A. 23,
and has decreased the frequency with which inmates’ families
appear before it, J.A. 24. The Board no longer meets in person
regularly, but instead circulates electronic files and has its
members cast votes to grant or deny parole electronically. J.A.
23-24. Virginia law requires the Board to establish rules to
govern parole procedure. VA CODE § 53.1-136.1. While
these used to be published in the Virginia Administrative
Code, 14 Va. Reg. No. 17 at 2457 (Apr. 22, 1998), in 1998
the Board repealed those policies and has not replaced them;
instead, it has adopted an informal "policy manual." J.A. 22.
Perhaps most tellingly, the policy manual lists fourteen fac-
tors the Board is to consider in determining whether to grant
parole, with rehabilitative concerns featuring prominently
among them. J.A. 22. Nevertheless, the Appellants were
denied parole in the vast majority of cases for one and only
one reason—the nature and circumstances of the underlying
offense. J.A. 22.3 The majority asserts that the Appellants
have offered "only speculation in support of [their] view" that
they are not being considered for parole. Maj. op. at 17. How-
ever, these significant procedural changes, taken together,
strongly suggest the Board has systematically eliminated the
procedures that would have furnished it with information
3
For example, Sharon Burnette has been denied parole 12 times, and the
sole reason given on each occasion was the "serious nature and circum-
stances of the crime" or words to that effect. J.A. 30-31. Edward Conquest
has been denied parole 22 times, all for the same reason. J.A. 32.
BURNETTE v. FAHEY 27
beyond the nature and circumstances of the underlying
offense. These allegations are sufficient to surmount the rela-
tively low burden of surviving a 12(b)(6) motion to dismiss.
It is true that on rare occasions the Board gave a reason
other than the nature and circumstances of the offense in
denying some of the Appellants parole. But for each Appel-
lant, the Board has relied on the nature and circumstances of
the offense, and no other factor, on at least one occasion.
Thus, assuming there is a constitutional violation when the
Board fails to consider any other reason, see supra Part II,
each Appellant has suffered a constitutional injury on multiple
occasions.
III.
"Fundamental fairness [is] the touchstone of due process."
Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973). In my view,
fundamental fairness in the parole context requires at a mini-
mum that the Board consider at least one factor beyond the
nature of the underlying offense. The facts in the Appellants’
complaint make out a plausible claim that the Board has failed
to comply with this requirement. As such, I would vacate the
district court’s 12(b)(6) dismissal and remand for further pro-
ceedings.