Gaskins v. Clarke (ORDER)

VIRGINIA:
In the Supreme Court of Virginia held at the Supreme Court Building in the
City of Richmond on Thursday the 25th day of July, 2024.
Present: Goodwyn, C.J., Powell, Kelsey, McCullough, Russell, and Mann, JJ.
JOHN CORNELIUS GASKINS, 	PETITIONER,
against 	Record No. 220807
HAROLD W. CLARKE, DIRECTOR, 	RESPONDENT.
UPON A PETITION FOR A WRIT OF HABEAS CORPUS
Upon consideration of the petition for a writ of habeas corpus filed December 7, 2022,
the rule to show cause, the respondent’s motion to dismiss, petitioner’s reply, the findings of fact
submitted by the Circuit Court of Fairfax County, petitioner’s December 5, 2023 supplement,1
and the parties’ supplemental briefs, the Court is of the opinion that the motion should be granted
and the petition should be dismissed.
In December 2018, petitioner was convicted in the Circuit Court of Fairfax County of
being a violent felon in possession of a firearm and sentenced to the statutorily mandated term of
five years’ imprisonment. Petitioner was released on bail pending his appeal of his conviction
and allowed to reside in Laurel, Maryland.
In April 2020, while petitioner’s appeal was pending in this Court, he was arrested in
Prince George’s County, Maryland, on charges of assault, possession of a firearm, and use of a
firearm in a violent felony. He was later charged with attempted murder, reckless endangerment,
and possession of ammunition (collectively, “Prince George’s charges”). Due to the Prince
George’s charges, petitioner was also charged in Montgomery County, Maryland, with violating
the terms of his probation there. While incarcerated on the Prince George’s charges, petitioner
failed to appear in court for a traffic violation case in Anne Arundel County, Maryland. This
Court refused petitioner’s Virginia appeal on November 25, 2020.
1 The Court grants petitioner’s motion to supplement the record, and the supplemental
record is deemed filed.

2
In Maryland, petitioner was initially held without bond on the Prince George’s charges.
Due to the COVID-19 pandemic, the Prince George’s court granted petitioner’s request for
release to home confinement, conditioned on pretrial services determining he qualified for
release. To qualify, petitioner needed a verified address, which he had, and to be free of
warrants and detainers. Thus, petitioner initially did not qualify for release to home confinement
because he had outstanding warrants in Montgomery and Anne Arundel Counties. However,
both of those warrants were quashed by December 1, 2020. At that point, the only impediment
to petitioner’s home confinement was the weekslong “backlog” of cases waiting to be processed
by Prince George’s pretrial services.
On January 29, 2021, upon learning of petitioner’s incarceration in Maryland, the Fairfax
Circuit Court issued a bench warrant for petitioner’s arrest, revoked the appeal bond, and ordered
that a detainer be issued to Prince George’s County to have petitioner returned to Fairfax County.
At the time the detainer issued, petitioner’s case had yet to be processed by Prince George’s
pretrial services. After the detainer issued, it became the sole reason Maryland officials
determined not to release petitioner to home confinement.
On November 22, 2021, petitioner’s Prince George’s charges were dismissed by nolle
prosequi. In seeking the Maryland court’s approval of the dismissal, the prosecution explained it
had been “unable to reach the victim” for “a long time” and no longer believed it could prove the
charges against petitioner. When approving the dismissal, the court expressed its disappointment
that the prosecution had allowed petitioner to “languish in jail” for as long as it had after losing
contact with its key witness. On December 1, 2021, petitioner was extradited to Virginia.
On March 8, 2022, petitioner became a state responsible inmate subject to the VDOC’s
custody. Shortly thereafter, petitioner asked the VDOC for credit toward his five-year Virginia
sentence for the time he spent in Maryland custody subject to the Virginia detainer from January
29 to November 22, 2021—a period of 298 days. The VDOC informed petitioner he would
receive credit for only the eight days of his time in Maryland custody corresponding with the
time he spent awaiting extradition to Virginia after the Prince George’s charges were dismissed.
In a portion of his petition, petitioner argues Code § 53.1-187 requires that his Virginia
sentence be credited for the time he spent incarcerated in Maryland from the date his appeal bond
was revoked and the Virginia detainer issued to the date his Prince George’s charges were
dismissed because that incarceration “ar[ose] out of [the] detainer.” Petitioner asserts he was

3
being held during this time “on both his Prince George’s . . . charges, and his detainer from
Fairfax Virginia (resulting from an active prison sentence).”
The Court holds this claim is without merit. As relevant here, Code § 53.1-187 provides
sentence credit to “any person who is sentenced to a term of confinement in a correctional
facility” for time that person spent awaiting trial or pending an appeal confined in a “state or
local correctional facility.” Elsewhere in Title 53, a “local correctional facility” is defined for
purposes of the Title as a facility “owned, maintained or operated by any political subdivision or
combination of political subdivisions of the Commonwealth,” and a “state correctional facility”
is defined as a facility “operated by the Department of Corrections.” Code § 53.1-1. Because
petitioner has not demonstrated he was housed “in a state or local correctional facility” as
defined by Code § 53.1-1 while he was confined in Maryland, he has not established his
entitlement to credit toward his Virginia sentence for that confinement under Code § 53.1-187.
In another portion of his petition, petitioner argues the federal Due Process Clause
requires that his Virginia sentence be credited for the time he spent incarcerated in Maryland.
Citing Durkin v. Davis, 390 F. Supp. 249 (E.D. Va. 1975), petitioner asserts he has a protected
liberty interest in credit toward his Virginia sentence for any post-conviction incarceration he has
served due to that sentence. See id. at 252 (“The right to pre-conviction and post-conviction
confinement sentence credit constitutes an interest in ‘liberty’ because when such credit is
withdrawn, the sentence that a state prisoner must serve is automatically increased and the date
for parole eligibility is, thereby, extended.”), rev’d on other grounds, 538 F.2d 1037 (4th Cir.
1976). Relying solely on Durkin, petitioner argues that, because he would have been released to
home confinement in Maryland but for his Virginia detainer, his Maryland incarceration is the
equivalent of time served on his Virginia sentence such that he has a constitutional right to
receive credit for all the time he spent incarcerated in Maryland while the Virginia detainer was
pending.
The Court holds this claim is without merit. While the Due Process Clause precludes
states from “depriv[ing] any person of life, liberty, or property without due process of law,”
petitioner fails to demonstrate that Virginia, as opposed to Maryland, deprived him of his
opportunity to be held on home confinement while his Prince George’s charges remained
pending. Although Maryland may have chosen to release petitioner to home confinement were it
not for his Virginia detainer, the sole and ultimate discretion to make that choice and decide how

4
or where petitioner would await the resolution of his Prince George’s charges remained
exclusively with Maryland and its officials.
As an initial matter, Maryland had the power to incarcerate petitioner without bail based
on his Prince George’s charges alone, regardless of the detainer, and it did so during the months
before the detainer issued. See United States v. Salerno, 481 U.S. 739, 751 (1987) (“When the
Government proves by clear and convincing evidence that an arrestee presents an identified and
articulable threat to an individual or the community, we believe that, consistent with the Due
Process Clause, a court may disable the arrestee from executing that threat.”); Mora v. City of
Gaithersburg, 519 F.3d 216, 222 (4th Cir. 2008) (explaining that, “although the Due Process
Clause typically requires a criminal conviction before a person may be deprived of liberty,”
certain categories of people can be constitutionally detained without conviction, including
“dangerous suspects awaiting trial”); see also Bradds v. Randolph, 239 Md. App. 50, 54 (2018)
(observing the “Maryland Rules long have recognized that decisions about whether and on what
terms to release defendants before trial are discretionary”). Further, petitioner’s detainer was not
governed by the Interstate Agreement on Detainers (“IADA”), to which Virginia and Maryland
are parties and by which they can impose reciprocal obligations on one another when lodging
detainers. See Code §§ 53.1-210 et seq. (implementing IADA in Virginia); Md. Code Ann.,
Corr. Servs. §§ 8-401 et seq. (implementing IADA in Maryland); see also Carchman v. Nash,
473 U.S. 716, 719 (1985) (“The [IADA] is a congressionally sanctioned interstate compact . . .
and thus is a federal law subject to federal construction.”). By its terms, the IADA governs
detainers based on “any untried indictment, information or complaint.” Code § 53.1-210, art.
III(a); Md. Code Ann., Corr. Servs. § 8-405, art. III(a). Consistent with this language, the United
States Supreme Court has held that Congress intended the IADA “to apply only to detainers
based on untried criminal charges.” Carchman, 473 U.S. at 728-34 (holding IADA does not
apply to detainers based on “a pending probation-violation charge”); see also State v. Jimenez,
808 N.W.2d 352, 355-57 (Neb. 2012) (holding IADA did not apply to detainer issued after
petitioner was convicted but before he was sentenced and citing accordant cases). Because the
detainer here was not based on “untried criminal charges,” it did not trigger any of the reciprocal
obligations Virginia might place on Maryland by issuing a detainer against someone in its
custody, like petitioner.

5
Outside the bounds of the IADA, the detainer had no coercive force or controlling
authority over Maryland’s decision to keep petitioner confined in jail, rather than at home,
pursuant to the Prince George’s charges. Instead, the detainer operated as merely a “‘matter of
comity’” between two coequal sovereigns: Virginia and Maryland. Rease v. Commonwealth,
227 Va. 289, 294 & n.* (1984) (quoting Moody v. Daggett, 429 U.S. 78, 80, n.2 (1976)). As this
Court has explained, comity “is not a matter of obligation. It is a matter of favor or courtesy,
based on justice and good will. . . . Comity is not given effect when to do so would prejudice a
State’s own rights or the rights of its citizens.” McFarland v. McFarland, 179 Va. 418, 430
(1942) (holding principles of comity did not require a Virginia court to give effect to a divorce
decree from North Carolina); see also Wilkinson v. Youell, 180 Va. 321, 326 (1942) (explaining
that, where a prisoner is “charged with the violation of the criminal laws of two sovereignties,”
the sovereignty with custody of the prisoner has a “strict right to exclusive custody,” and any
waiver of that right “‘is a matter that addresses itself solely to the discretion of the sovereignty
making it, and of its representatives with power to grant it’” under the rules of comity) (quoting
Ponzi v. Fessenden, 258 U.S. 254, 260 (1922)). Federal courts agree and have stated that comity
is a matter of discretion rather than obligation, and thus authority over a detainee facing charges
or sentences in multiple jurisdictions belongs to the jurisdiction with physical custody of the
detainee. See, e.g., Hernandez v. United States Att’y Gen., 689 F.2d 915, 918 (10th Cir. 1982)
(“Whether jurisdiction and custody of a prisoner shall be retained or surrendered is a matter of
comity and is to be determined by the sovereign having custody.” (citation omitted)); Strand v.
Schmittroth, 251 F.2d 590, 598 (9th Cir. 1957) (explaining, in holding a federal district court had
no authority to order state officials to transfer custody of a state prisoner to federal officials, that
“[a]s courtesy cannot be enforced, neither can comity,” and “the court of one sovereign
[therefore] cannot compel the exercise of comity by the court of a different power”).
Numerous federal courts have distilled these notions of comity as they apply to authority
over detainees facing charges or sentences in multiple jurisdictions into the “doctrine of primary
jurisdiction” or “primary custody.” See, e.g., Johnson v. Gill, 883 F.3d 756, 761-63 (9th Cir.
2018) (citing Ponzi, 258 U.S. at 259); Pope v. Perdue, 889 F.3d 410, 415 (7th Cir. 2018); United
States v. Cole, 416 F.3d 894, 897 (8th Cir. 2005); see also Thomas v. Whalen, 962 F.2d 358, 362

6
n.7 (4th Cir. 1992) (discussing “primary jurisdiction”).2 Under this doctrine, the “primary
jurisdiction over a person is generally determined by which [sovereign] first obtains custody of,
or arrests, the person,” and primary jurisdiction then continues “until the first sovereign
relinquishes its priority in some way.” Cole, 416 F.3d at 897. Courts applying this doctrine
generally agree that a sovereign relinquishes primary jurisdiction by, among other acts, releasing
a detainee on bail or dismissing the charges against him. Id.; accord, e.g., Johnson, 883 F.3d at
765; Pope, 889 F.3d at 415. Further, a sovereign does not obtain primary jurisdiction merely by
issuing a detainer. See, e.g., Thomas, 962 F.2d at 360 (“A detainer neither effects a transfer of a
prisoner from state to federal custody nor transforms state custody into federal custody by
operation of law.”); Wiseman v. Wachendorf, 984 F.3d 649, 654 (8th Cir. 2021) (“A detainer . . .
does not alter the custody status of a prisoner.”) (citing Thomas). To the contrary, issuing a
detainer indicates the issuing state has “agreed to surrender primary jurisdiction.” Johnson, 883
F.3d at 766 (holding Texas’ issuing detainer with respect to prisoner in federal custody supported
conclusion that Texas had surrendered primary jurisdiction).
Applying this framework to the facts here further underscores that Virginia had no
authority over petitioner’s confinement or the location thereof in Maryland while the Prince
George’s charges remained pending. Although Virginia may have obtained primary jurisdiction
over petitioner when it arrested and later convicted him on his charge in Fairfax County, it
relinquished that primary jurisdiction when it released him on bail pending appeal. Maryland
then obtained primary jurisdiction when it arrested petitioner on the Prince George’s charges. As
long as those charges were pending, Maryland maintained primary jurisdiction and, by
extension, ultimate authority over the status of petitioner’s custody. Only after those charges
were dismissed did Maryland relinquish that authority. Consistent with these changes in
authority over petitioner’s detention, he has received credit for the time he spent incarcerated in
Maryland after the Prince George’s charges were dismissed.
2 The federal courts articulated this doctrine to address jurisdiction “[a]s between the state
and federal sovereigns.” Cole, 416 F.3d at 897. Some state courts have applied it to situations
like the one here, to address jurisdiction over a detainee as between two states. See, e.g., Matter
of Blake v. Inmate Records Clerk, 213 A.D.3d 1037, 1039 (N.Y. App. Div. 2023) (applying
doctrine as between New York and Delaware); State v. Start, 427 N.W.2d 800, 803 (Neb. 1988)
(discussing same as between Nebraska and Colorado).

7
In sum, as a matter of comity, the detainer here was not an exercise of any authority by
Virginia over Maryland or petitioner, much less an exercise of authority that deprived petitioner
of his liberty or his ability to be confined at home. The detainer was merely a request from
Virginia that Maryland officials were free to reject, and Maryland’s decision to deny petitioner
release to home confinement based on the detainer was therefore an exercise of only Maryland’s
own sovereign power. Had Maryland decided to release petitioner notwithstanding the detainer,
Virginia would have had no recourse to challenge that decision or seek to overturn it. See
Strand, 251 F.2d at 600 (stating that where a prisoner subject to a conviction in one state leaves
that state and is arrested in a second state, the first state “has no prior rights,” its “officers cannot
take the prisoner from the custody of the” second state, and its “courts cannot enjoin the [second
state’s] courts from proceeding”). We therefore reject petitioner’s assertion that his incarceration
in Maryland was equivalent to time served on his Virginia conviction.
Further, under similar circumstances, where a prisoner seeks credit toward a sentence
imposed by one sovereign for time he spent incarcerated by a separate sovereign, federal courts
have held that due process protections do not require granting such credit. See, e.g., Bagley v.
Rogerson, 5 F.3d 325 (8th Cir. 1993) (holding due process did not require crediting Bagley’s
Iowa sentence with time he served on a federal sentence that was later vacated). Bagley
explained that “federal courts have found no due-process violation from a denial of federal credit
for time served on a vacated state sentence, even when service of the state sentence delayed the
start of a federal sentence.” Id. at 330.3 Bagley thus concluded “the federal Constitution did not
require the state of Iowa . . . to grant [a prisoner] credit on a state sentence on account of legal
3 This Court has held that “where a prisoner is . . . being detained under a void sentence,
he is entitled to credit for the time served under such sentence on a valid sentence, or sentences,
entered against him prior to the time he began serving the void sentence.” Peyton v. Christian,
208 Va. 105, 108 (1967) (citation omitted) (holding petitioner was entitled to credit toward a
1945 sentence in Portsmouth for time spent confined on a 1944 sentence in Norfolk that was
later declared void). Similarly, the Fifth Circuit in Scott v. United States, 434 F.2d 11 (5th Cir.
1970), a case relied on by Bagley, acknowledged that, “if several or consecutive federal
sentences are imposed upon a defendant, some of which are void, credit against the valid
sentence should be given for the time spent in federal custody.” Id. at 21 (emphasis in original).
Nevertheless, Scott held this rule does not apply where the void sentence and the valid sentence
were imposed by different jurisdictions, in that case Mississippi and the United States. Id. at 21-
22. In the same way, the rule articulated in Peyton does not apply here where petitioner seeks
credit toward a Virginia sentence for time he spent incarcerated pursuant to Maryland’s sole
authority.

8
errors made by the federal district court” because if “an injustice has been done, it has been done
by the United States, not by the State of Iowa.” Id. Here too, we conclude that due process does
not require Virginia to grant petitioner credit toward his Virginia sentence for time he spent
incarcerated on his Prince George’s charges subject to Maryland authority, even when his time in
Maryland delayed the start of his Virginia sentence, and even assuming, as petitioner asserts, the
circumstances surrounding the dismissal of his Prince George’s charges indicate he was
“unjustly” incarcerated in Maryland. As in Bagley, any injustice is attributable to Maryland and
not Virginia.
This conclusion comports with the more general principle that a deprivation of liberty or
property is not, under the Due Process Clause, “attributable to a State unless it is traceable to the
State’s power or authority.” See Lindke v. Freed, 601 U.S. 187, 194-95, 198 (2024) (interpreting
“statutory requirement of action ‘under color of state law’” under 42 U.S.C. § 1983 and
explaining that this requirement “and the ‘state action’ requirement of the Fourteenth
Amendment are identical” (citation omitted)). Because Virginia exercised no power or authority
over Maryland’s decision to incarcerate petitioner while the Prince George’s charges were
pending, any associated deprivation of liberty is not sufficiently attributable to Virginia to
implicate the Due Process Clause.
It follows that the circumstances here are materially distinguishable from those in Durkin,
the sole authority petitioner cites in support of his due process claim. There, a Virginia court
denied statutorily created sentence credit to a prisoner for time he spent incarcerated in a
Virginia jail, both pretrial and post-conviction, because he had escaped from the jail and fled to
Florida. A prisoner’s escape provided a basis for denying credit under the relevant statute,4 and
the prisoner complained he had not received sufficient procedural due process before the court
concluded he was an escapee and denied him the credit he would otherwise have been due.
Durkin, 390 F. Supp. at 250-51. In concluding the prisoner was entitled to greater process than
he received, Durkin determined, in part, that the prisoner had a constitutionally protected liberty
interest in “pre-conviction and post-conviction confinement sentence credit.” Id. at 252-56.
4 Former Code § 53-208, the precursor to Code § 53.1-187, provided that any person
sentenced to a term of imprisonment was entitled to credit toward that sentence for “all time
actually spent by such person . . . in jail or the penitentiary awaiting trial, or pending an appeal,”
but “[n]o such credit . . . shall be given to any person who shall break jail or make an escape.”

9
Unlike petitioner, however, the prisoner in Durkin sought credit for confinement that occurred
exclusively in Virginia. And the credit he sought would have gone toward his sentence on the
same Virginia convictions on which that confinement was based. Here by comparison, petitioner
demands credit toward his Virginia sentence for time he was confined in another state due to
unrelated charges brought by that state. Durkin does not hold that due process entitles petitioner
to such credit and, for the reasons above, neither do we.
Finally, petitioner argues for the first time in his supplemental brief that failure to award
him the sentence credit he seeks would violate the Fifth Amendment’s prohibition on double
jeopardy. He contends that because he was incarcerated in Maryland after jeopardy attached to
his Virginia conviction, failing to grant him credit for his time in the Maryland jail would
effectively punish him twice for the same offense.
This claim is not properly before the Court because it was not raised in petitioner’s initial
petition and because petitioner has not sought nor been granted leave to amend his petition to
include this claim. See Code § 8.01-654(B)(2) (a petition for a writ of habeas corpus “shall
contain all allegations the facts of which are known to petitioner at the time of filing”); Rule 1:8
(“No amendments may be made to any pleading after it is filed save by leave of court.”); Rule
5:7(e) (a petitioner may not raise new claims unless, prior to the expiration of the statute of
limitations and the entry of a ruling on the petition, he obtains permission from the Court to do
so).
Upon further consideration whereof, petitioner’s motions for bail, bond, or release
pending the resolution of his petition are denied as moot.
Accordingly, the petition is dismissed and the rule is discharged.
This order shall be published in the Virginia Reports and certified to counsel for the
petitioner and counsel for the respondent.
A Copy,
Teste:
Clerk