Carroll E. Wade v.  DAVE ROBINSON, Warden

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 CARROLL E. WADE,
Petitioner-Appellant,
v. No. 01-7768 
DAVE ROBINSON, Warden,
Respondent-Appellee. 
Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
James C. Turk, Senior District Judge.
(CA-01-520-7)
Argued: January 21, 2003
Decided: April 22, 2003
Before LUTTIG, WILLIAMS, and GREGORY, Circuit Judges.
Affirmed by published opinion. Judge Luttig wrote the opinion, in
which Judge Williams joined. Judge Gregory wrote a concurring
opinion.
COUNSEL
ARGUED: Christie Ann Leary, GREENSPUN & MANN, P.C., Fair-
fax, Virginia, for Appellant. William W. Muse, Assistant Attorney
General, Division of Public Safety & Enforcement, OFFICE OF THE
ATTORNEY GENERAL, Richmond, Virginia, for Appellee. ON
BRIEF: Jerry W. Kilgore, Attorney General, Division of Public
Safety & Enforcement, OFFICE OF THE ATTORNEY GENERAL,
Richmond, Virginia, for Appellee.

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OPINION
LUTTIG, Circuit Judge:
Petitioner Wade appeals the district court’s dismissal of his 28
U.S.C. § 2254 habeas corpus petition as untimely pursuant to 28
U.S.C. § 2244(d)(1)(A). Wade contends first that section 2244(d)(1)
does not apply to his petition, which challenges the state’s rescind-
ment of his good conduct credits upon his parole revocation, because
his is not a challenge to a state court judgment, and because, he
argues, he is not in custody pursuant to a state court judgment. Alter-
natively, Wade contends that the district court misapplied sec-
tion 2244(d)(1).
Although the district court did misapply section 2244(d)(1),
Wade’s first contention is without merit, and his petition is still
untimely under a correct calculation of the limitation period. Accord-
ingly, we affirm.
I.
Wade was convicted of burglary and cocaine possession on June
17, 1994, and he was thereafter sentenced to eighty-four months of
imprisonment, forty-five of which were suspended. In January 1996,
Wade was released on supervised parole. He was found guilty of
parole violations by the Virginia Parole Board on April 3, 1997 and
his parole was revoked. Wade filed a state habeas petition on Febru-
ary 12, 1998, challenging, as in violation of the Ex Post Facto Clause,
section 53.1-159 of the Virginia Code, which denies re-incarcerated
parole violators the benefit of previously accrued good conduct credits.1
The Virginia court denied his petition on June 30, 2000.
On June 29, 2001, Wade filed a habeas petition in federal district
court under 28 U.S.C. § 2254 asserting the same constitutional claim
1Wade claims that he filed his petition on February 12, 1998, when he
gave the petition to prison officials for mailing. The Virginia court never
received this original filing, however, so Wade refiled his petition on
December 29, 1999. For purposes of this appeal, we assume that Wade
did give prison officials his filing for mailing on February 12, 1998.
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as was denied by the state court. The district court dismissed Wade’s
petition, concluding that it was untimely filed under the limitation
period that governs habeas petitions challenging custody pursuant to
a state court judgment. See 28 U.S.C. § 2244(d)(1). In particular, the
district court rested its judgment on section 2244(d)(1)(A). It reasoned
that under subparagraph (A), subpart (1)’s one-year limitation began
to run on May 3, 1997, the last day Wade could have directly
appealed his parole revocation. Calculating that the limitation period
was tolled from February 12, 1988 (the date Wade filed his state
habeas petition), to June 30, 2000 (the date that petition was denied),
the court concluded that the filing period expired in September 2000,
ten months before Wade filed his federal petition. Wade timely noted
an appeal.
II.
As a preliminary jurisdictional matter, appeal of a district court’s
dismissal of a section 2254 habeas petition may not be brought before
this court unless a Certificate of Appealability issues. See 28 U.S.C.
§ 2253(c). In this case, Judge Gregory, acting as a single circuit judge,
granted a Certificate of Appealability, thus providing us with jurisdic-
tion to address Wade’s petition.
III.
A.
On appeal, Wade contends first that section 2244(d)(1) does not
apply to him at all. He contends that that section, by its plain lan-
guage, only governs habeas petitions (1) brought by persons who are
in custody pursuant to a state court judgment, and (2) which directly
challenge a state court judgment. And he argues that he is not in cus-
tody pursuant to a state court judgment and that his petition does not
challenge a state court judgment. See Petitioner’s Br. at 10 (arguing
that Wade is "in custody pursuant to a decision by the Virginia Parole
Board," not pursuant to a judgment of a state court); Petitioner’s
Reply Br. at 3 ("A plain reading of § 2244(d)(1) makes that limitation
period applicable to challenges of state court judgments alone.").
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Section 2244(d)(1) of Title 28 of the United States Code, imposes
the following limitation on federal habeas claims:
(1) A 1-year period of limitation shall apply to an applica-
tion for a writ of habeas corpus by a person in custody pur-
suant to the judgment of a State court. . . .
28 U.S.C. § 2244(d)(1). Thus, any "person in custody pursuant to the
judgment of a State court," and who brings an application for a writ
of habeas corpus, is subject to the "1-year period of limitation."
Wade’s first argument, that he is in custody pursuant to an order
of the Virginia Parole Board, not a judgment of a state court, misses
the point. Most immediately Wade does find himself, in common par-
lance, in custody by virtue of the parole board’s decision to revoke
his parole. But he still is, and remains, in custody pursuant to his 1994
conviction and sentence. That is, he is in custody pursuant to a state
court judgment within the meaning of section 2244(d)(1), even if he
also is in custody pursuant to the judgment of a state executive
agency.
Wade’s second contention, that section 2244(d)(1) only applies to
habeas petitions that actually challenge state court judgments, also
fails. The section’s plain language reaches any and every habeas peti-
tion filed by persons who are in custody pursuant to state court judg-
ments. The section does not distinguish based on the contents of a
petitioner’s claim, but encompasses all "application[s] for writ of
habeas corpus." Here, Wade, a person in custody pursuant to a state
court judgment, applied for a writ of habeas corpus, and the section,
together with its 1-year limitation, governs.
Section 2244(d)(1) is not alone in not distinguishing among habeas
claims that challenge state court judgments and those that challenge
another aspect of custody. As section 2254 makes clear, the defining
feature of a state prisoner’s habeas claim is that it presents a challenge
to his custody.
The Supreme Court, a Justice thereof, a circuit judge, or a
district court shall entertain an application for a writ of
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habeas corpus in behalf of a person in custody pursuant to
the judgment of a State court only on the ground that he is
in custody in violation of the Constitution or laws or treaties
of the United States.
28 U.S.C. § 2254(a) (emphasis added). Section 2244(d)(1), governing
"application[s] for a writ of habeas corpus," applies to claims chal-
lenging any aspect of custody, so long as the petitioner is in custody
pursuant to a state court judgment.2
Wade next argues that even if section 2244(d)(1)’s text does not
compel his interpretation, subparagraph (A) of the section does.
(1) A 1-year period of limitation shall apply to an applica-
tion for a writ of habeas corpus by a person in custody pur-
suant to the judgment of a State court. The limitation period
shall run from the latest of —
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
(B) the date on which the impediment to filing an applica-
tion created by State action in violation of the Constitution
or laws of the United States is removed, if the applicant was
prevented from filing by such State action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
2Examples abound of habeas claims that challenge an aspect of cus-
tody, but do not challenge the state court judgment pursuant to which the
petitioner is in custody. See, e.g., California Dept. of Corrections v.
Morales, 514 U.S. 499 (1995) (deciding a federal habeas challenge to the
state’s deferment of petitioner’s parole hearing); Preiser v. Rodriguez,
411 U.S. 475 (1973) (concluding that prisoners can bring federal habeas
challenge to the state’s revocation of their good time credits); Morrissey
v. Brewer, 408 U.S. 471 (1972) (deciding a federal habeas challenge to
the state parole board’s revocation of petitioner’s parole).
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(D) the date on which the factual predicate of the claim
or claims presented could have been discovered through the
exercise of due diligence.
28 U.S.C. § 2244(d)(1).
Wade’s reading, that subparagraph (A) implicitly limits the reach
of subpart (1), is not plausible. Subpart (1) is a self-contained provi-
sion which, in clear, unequivocal language, sets forth a 1-year limita-
tion period for all habeas challenges filed by persons held in custody
pursuant to state court judgment. Neither subparagraph (A) nor any
of the paragraph’s other subparagraphs can plausibly be understood
to limit the reach of this subpart to only petitions that challenge the
state court judgment pursuant to which the petitioner is in custody.
These subparagraphs merely identify the date from which the 1-year
limitation period applicable to all who are in custody pursuant to state
court judgment will begin to run. They do not serve to further limit
the class of persons as to whom the 1-year limitation applies.3
Because section 2244(d)(1) contains no restriction limiting its
reach to habeas claims challenging state court judgments, and because
its subparagraphs neither necessitate nor even imply such a restric-
tion, we conclude that section 2244(d)(1) "appl[ies] to [Wade’s]
application for a writ of habeas corpus [since he is] a person in cus-
tody pursuant to the judgment of a State court." See 28 U.S.C.
§ 2244(d)(1).
B.
In applying section 2244(d)(1) to Wade’s petition, the district court
concluded that subparagraph (A) governed, and it identified the start
of the limitation period as the date the Virginia Parole Board decision
3Indeed, subparagraphs (A), (B), and (D) set forth criteria for calculat-
ing limitation periods that are as applicable to claims that do not chal-
lenge state court judgments as to claims that do. And subparagraph (C),
in fact, only governs the former. When the Supreme Court articulates a
new rule of constitutional law and that rule is retroactively applicable,
habeas petitions brought on that rule do not challenge state court judg-
ments as wrongly decided.
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became final. Wade argues the court erred because subparagraph (A)
refers to the date on which a state court judgment becomes final.
Because the Virginia Parole Board is an executive agency, he reasons
the date of its judgment cannot trigger the limitation period under
subparagraph (A). We agree with Wade. Subparagraph (A), referenc-
ing "the date on which the judgment became final by the conclusion
of direct review or the expiration of the time for seeking such
review," plainly references "the judgment" referred to in the preced-
ing subpart (1) — that is, the state court judgment pursuant to which
the petitioner is in custody.
Wade next argues that proper application of section 2244(d)(1)(A)
compels the conclusion that the date the state court rejected his state
habeas petition, which also challenged his loss of good time credits,
is the date the limitation period began. This date was June 30, 2000,
so he argues his filing was timely by one day.
We can reject Wade’s analysis out of hand, having established that
subparagraph (A) references the judgment of a State court pursuant
to which the petitioner is in custody.4 Subparagraph (A) must refer-
ence the date Wade’s 1994 conviction became final.5 This date, of
course, is not necessarily the date the limitation period began. Sec-
tion 2244(d)(1) provides that "the limitation period shall run from the
latest of" four different dates, defined by subparagraphs (A), (B), (C),
and (D). Neither party suggests that either subparagraph (B) or (C)
implicates an applicable date. The question, therefore, is only whether
the date applicable under subparagraph (D) is later than that applica-
ble under subparagraph (A).
4Judgments in collateral habeas corpus actions do not establish cus-
tody. For that reason, although a state court denies habeas relief on a col-
lateral challenge to a conviction, federal courts do not look to the date
of the state court’s denial of habeas relief as the date on which the cus-
tody judgment becomes final, but, rather, to the date the conviction is
affirmed on direct review.
5Had Wade appealed his parole revocation in the state courts, as he
could have, then arguably that decision would constitute a state court
judgment pursuant to which he was in custody as well. As it is, though,
he did not appeal his parole revocation in the state courts.
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Subparagraph (D), by referencing the date on which the factual
predicate of Wade’s claim could have been discovered through the
exercise of due diligence, references the date that Wade’s parole revo-
cation became final. On that date, Wade’s good conduct credits were
rescinded by operation of law, and on that date Wade could have dis-
covered through public sources that such had occurred. This date
apparently came later than the date yielded by operation of subpara-
graph (A), the date on which the state court rendered final judgment
as to Wade’s 1994 conviction, so subparagraph (D) governs here.
Thus, the district court erred by applying section 2244(d)(1)(A) to
Wade’s petition. It should have instead applied section 2244(d)(1)(D).
However, although the district court erred, its ultimate judgment
was correct. It calculated the statute of limitations, though ostensibly
under subparagraph (A), from the applicable date under sec-
tion 2244(d)(1)(D), the date Wade’s parole revocation became final.
The court correctly reasoned that the one-year limitation, having
begun to run on May 3, 1997, expired before Wade filed his petition,
and, therefore, dismissal was ultimately proper.
CONCLUSION
The judgment of the district court is thus affirmed.
AFFIRMED
GREGORY, Circuit Judge, concurring:
I.
I concur with the majority’s conclusion on the merits that pursuant
to 28 U.S.C. § 2244(d)(1)(D), Wade’s petition for writ of habeas cor-
pus must be dismissed as untimely. The majority suggests, however,
that absent my vote it would not have granted a Certificate of
Appealability ("COA") to consider this procedural issue. See ante, at
3 (commenting that, "Judge Gregory, acting as a single circuit judge,
granted a Certificate of Appealability, thus providing us with jurisdic-
tion to address Wade’s petition"). Accordingly, I write separately to
explain my decision to grant a COA in this matter.
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II.
The Supreme Court has recently explained that while "the issuance
of a COA must not be pro forma or a matter of course," "[w]e do not
require a petitioner to prove, before the issuance of a COA, that some
jurists would grant the petition for habeas corpus" on the merits.
Miller-El v. Cockrell, 537 U.S. ___, ___, 123 S.Ct. 1029, 1040
(2003). "Indeed, a claim can be debatable even though every jurist of
reason might agree, after the COA has been granted and the case has
received full consideration, that petitioner will not prevail." Id.
Carroll E. Wade’s petition was denied in the district court on pro-
cedural grounds. Therefore, to obtain appellate review of the denial
of his petition, Wade first must show "that jurists of reason would
find it debatable whether the petition states a valid claim of the denial
of a constitutional right. . . ." Slack v. McDaniel, 529 U.S. 473, 484
(2000). Secondly, he must demonstrate "that jurists of reason would
find it debatable whether the district court was correct in its proce-
dural ruling." Id. Because Wade easily satisfies his burden as to both
questions, a COA has been granted.
A.
The substance of Wade’s constitutional claim is that he suffered a
denial of his procedural Due Process rights when the Virginia Parole
Board revoked his parole and accrued good time credits. As Wade
explained in a letter submitted to the Virginia Department of Correc-
tions on March 20, 2000, "I was informed by my counselor [in the
prison facility] that I was scheduled to have a final parole revocation
hearing. However, I was not afforded this hearing nor did I refuse to
be present at the hearing. Subsequent to the previously stated fact, I
received a letter from the parole board of their [sic] decision to revoke
my parole status." (J.A. at 20.)
It is well-established that "the minimum requirements of due pro-
cess" for a parole revocation proceeding include the "opportunity to
be heard in person and to present witnesses and documentary evi-
dence," as well as "the right to confront and cross-examine adverse
witnesses (unless the hearing officer specifically finds good cause for
not allowing confrontation). . . ." Morrissey v. Brewer, 408 U.S. 471,
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488-89 (1972). Because the documentary evidence contained in the
record suggests that these rights might not have been respected, Wade
has successfully cleared the first hurdle toward the issuance of a
COA.
B.
Having stated a claim alleging the denial of a constitutional right,
Wade must now establish "that jurists of reason would find it debat-
able whether the district court was correct in its procedural ruling."
Slack, 529 U.S. at 484. The procedural question in this case involves
an issue of first impression in this Circuit: whether the limitations
period prescribed in 28 U.S.C. § 2244(d)(1) applies to petitions chal-
lenging administrative agency decisions. Addressing this same issue,
the Fifth Circuit has concluded, based on a plain reading of the stat-
ute, that § 2244(d)(1) "literally applies" to petitions contesting the
outcome of prison disciplinary proceedings. Kimbrell v. Cockrell, 311
F.3d 361, 363 (5th Cir. 2002). Judges Posner and Easterbrook, how-
ever, writing for the Seventh Circuit, have relied on principles of fed-
eralism and comity among the States, embodied in the Full Faith and
Credit Clause and 28 U.S.C. § 1738, to reach a contrary result. See
Cox v. McBride, 279 F.3d 492 (7th Cir. 2002); White v. Indiana
Parole Board, 266 F.3d 759, 766 (7th Cir. 2001).
Like the majority, I find the reasoning of the Fifth Circuit to be
ultimately more persuasive. However, in order for a COA to issue,
Wade need not show that the Seventh Circuit’s approach is correct.
Rather, he simply needs to establish that "reasonable jurists could
debate whether . . . the petition should have been resolved in a differ-
ent manner. . . ." Slack, 529 U.S. at 484 (2000) (quoting Barefoot v.
Estelle, 463 U.S. 880, 893 n.4 (1983)) (emphasis added). Because rea-
sonable jurists from two of our sister circuits have actually disagreed
as to the resolution of this issue of statutory construction, Wade obvi-
ously has met his burden on the second prong of Slack. Accordingly,
there can be no doubt that a COA must issue.
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