Irving v. Gurney ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ANGELO MARCELLUS IRVING,
Petitioner-Appellant,
v.
No. 98-7426
PATRICK GURNEY, Manager of
Virginia Department of Corrections
Court and Legal Section,
Respondent-Appellee.
Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
James C. Turk, District Judge.
(CR-98-279)
Submitted: March 11, 1999
Decided: March 22, 1999
Before WIDENER and LUTTIG, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed as modified by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Angelo Marcellus Irving, Appellant Pro Se. Mark Ralph Davis,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Rich-
mond, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Angelo M. Irving challenges the procedure used by the Virginia
Parole Board to determine that he was ineligible for parole. He con-
tends that the Parole Board did not apply its applicable interpretive
policies in determining that Irving was ineligible for parole based on
several prior robbery convictions under Virginia Code Ann. § 53.1-
151(B1) (Michie 1998). The district court adopted the report and rec-
ommendation of the magistrate judge and found that Irving's com-
plaint was best characterized as a 28 U.S.C.A. § 2254 (West 1994 &
Supp. 1998) petition. The court then concluded that Irving's petition
was meritless, because decisions regarding parole eligibility are best
left to state officials, and federal courts must defer to the Parole
Board's interpretation of state law. See Vann v. Angelone, 73 F.3d
519, 521-22 (4th Cir. 1996). Although we find that the district court
erred in determining that Irving's complaint was a§ 2254 petition, we
agree that Irving's contentions are meritless. Thus, we affirm the dis-
trict court's order as modified.
State prisoners may challenge the procedures used in parole eligi-
bility determinations under 42 U.S.C.A. § 1983 (West Supp. 1998),
if they are not claiming a right to be released. See Strader v. Troy, 571
F.2d 1263, 1269 (4th Cir. 1978). Irving does not claim that he is enti-
tled to release, only that he is entitled to injunctive relief ordering the
Parole Board to apply its interpretive policies. Therefore, the district
court incorrectly categorized Irving's complaint. Nonetheless, Irving
incorrectly asserts that the Parole Board failed to properly consider
his eligibility. We find that the policy to which Irving refers, and
which is quoted in the district court's opinion, is completely consis-
tent with the conclusion of the Parole Board, and thus, Irving cannot
show a failure to consider this policy. Thus, we modify the district
court's order to reflect that Irving filed a § 1983 action and affirm the
order as modified. We dispense with oral argument because the facts
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and legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED AS MODIFIED
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