Filed Date: Feb. 3, 2010
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On February 3, 2010, eleven Virginia prisoners, represented by the Legal Aid Justice Center and private counsel, filed this class action lawsuit against the Virginia Parole Board ("the Board") under 42 U.S.C. § 1983 in the U.S. District Court for the Eastern District of Virginia. Plaintiffs challenged the Board's denials of parole for prisoners convicted of violent offenses solely because of the nature and circumstances of the crimes they had been convicted of committing. Those denials, Plaintiffs said, violated their due process rights and were unconstitutional ex post facto enhancements of their sentences. Plaintiffs sought declaratory and injunctive relief.
Specifically, Plaintiffs claimed that the Board adopted and implemented practices, policies, and procedures for making parole determinations without considering all the circumstances required by Virginia law, resulting in a drastic reduction in the availability of parole for prisoners convicted of violent offenses and the de facto abolition of the provisions of Virginia law governing parole for such prisoners. Moreover, Plaintiffs claimed these practices, policies and procedures created a significant risk of increasing the measure of punishment attached to their crimes at the time of sentencing.
Plaintiffs brought this action on behalf of a class of persons currently incarcerated by the Virginia Department of Corrections ("DOC") for violent offenses committed prior to January 1, 1995, who were or would become eligible for parole, and who had been or were likely to be denied parole exclusively or primarily by reference to the serious nature or circumstances of the crimes they had been convicted of committing.
On March 1, 2010, Defendants filed a Motion to Dismiss. On October 25, 2010, the Court (Judge Robert E. Payne) denied discovery and dismissed the case with prejudice. Judge Payne held that Plaintiffs had only a limited liberty interest in parole that was satisfied by existing prison procedures, noting that "the Board has provided each Plaintiff with a constitutionally valid reason for denying them release on discretionary parole." In addition, Judge Payne rejected the ex post facto claims because the complaint revealed that about 120 to 230 prisoners who had been convicted of committing violent crimes were released on parole each year.
On November 22, 2010, Plaintiffs filed a Motion to Alter Judgment Pursuant to Rule 59(e). In their Rule 59(e) motion, Plaintiffs requested that the Court alter or amend its order of dismissal to be "without prejudice" in order to provide Plaintiffs an opportunity to amend their Complaint. On March 1, 2011, Judge Payne denied Plaintiffs' Motion to Alter Judgment.
Plaintiffs appealed the case to the Fourth Circuit. On July 10, 2012, the Fourth Circuit affirmed the District Court’s ruling in an opinion delivered by Judge Henry F. Floyd. Judge Floyd largely adopted the district court's reasoning, noting that discretionary decisions about whether to grant parole did not implicate the ex post facto clause. Judge Roger L. Gregory dissented, criticizing the majority's "rigidly formalistic view" of due process that allowed the Board to discharge its duties by supplying Plaintiffs written reasons for parole denials without requiring individualized consideration.
Plaintiffs petitioned for a rehearing, but this was denied on November 15, 2012. No further activity has occurred since that date, and the case is now closed.
Summary Authors
Xin Chen (4/30/2011)
Christiana Johnson (11/15/2019)
For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/4405473/parties/burnette-v-fahey/
Floyd, Henry Franklin (South Carolina)
Gregory, Roger L. (Virginia)
Angle, Robert Armistead (Virginia)
Gulotta, Alex Ross (Virginia)
Lay, John R. (Virginia)
See docket on RECAP: https://www.courtlistener.com/docket/4405473/burnette-v-fahey/
Last updated June 22, 2025, 1:02 a.m.