Fauconier v. Virginia

649 F.Supp.3d 212

Douglas FAUCONIER, Plaintiff, v. Commonwealth of VIRGINIA, Defendant.

1:22cv460 (TSE/IDD)

United States District Court, E.D. Virginia, Alexandria Division

Signed January 4, 2023

Douglas Fauconier, State Farm, VA, Pro Se.

Laura Haeberle Cahill, Office of the Attorney General, Richmond, VA, for Defendant.

MEMORANDUM OPINION

T.S. Ellis, III, United States District Judge

Douglas Fauconier ("Fauconier" or "Plaintiff"), a Virginia inmate proceeding pro se, filed a civil rights action under 42 U.S.C. § 1983. [Dkt. No. 1]. Plaintiff alleges that the Commonwealth of Virginia violated his right to equal protection because he was not made parole eligible by an amendment to Virginia Code § 53.1-165.1 effective April 22, 2020, which made inmates "sentenced by a jury prior to June 9, 2000, for any felony offense committed on or after January 1, 1995, and who remained incarcerated for such offense on July 1, 2020," eligible for parole. The bill was enacted and signed by the Governor on April 22, 2020. See 1994, 2nd Sp. Sess., cc. 1, 2; 2020, cc. 2, 529, 1200, 1272 ("2020 Amendment"). Plaintiff admits he was convicted of "a felony" in 1998, and as noted below, the online records of the Circuit Court of Arlington County, Virginia indicate he pleaded guilty in 1998 and 1999 to ten felonies that occurred in 1996 and was not sentenced by a jury.

The Attorney General was served with the complaint and has filed a motion to dismiss, with a brief in support. [Dkt. No. 16, 17]. Plaintiff was advised of his right to file responsive materials to the motion to dismiss pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), and Local Rule 7(K). Plaintiff filed an opposition to the motion to dismiss and a supporting memorandum, and he also moved for leave to amend. [Dkt. Nos. 22-24]. The motion to amend seeks to add additional defendants (the Attorney General of Virginia, all current members of the Virginia General Assembly, and the Governor of the State of Virginia, Glenn Youngkin). [Dkt. No. 22 at 1]. Accordingly, this matter is now ripe for disposition. For the reasons that follow, the Commonwealth of Virginia's motion to dismiss must be granted, and Plaintiff's motion for leave to amend must be denied because he has failed to state a claim and his proposed amendment would be futile.

I. Background

Plaintiff is an inmate in the Virginia Department of Corrections ("VDOC"), currently incarcerated at the Augusta Correctional Center. Plaintiff's complaint reflects that in 1998 he pled guilty to a felony that involved conduct that occurred in 1996 and that, because he pled guilty, he was sentenced by a judge and not a jury. [Dkt. No. 1 at 3]. The online records of the Circuit Court of Arlington County, Virginia establish that Plaintiff pleaded guilty to ten felonies.¹ Seven of the felonies occurred on July 3, 1996 — two counts of use of a firearm in the commission of a felony in violation of Virginia Code § 18.2-53.1; two counts of robbery in violation of Virginia Code § 18.2-58; two counts of abduction in violation of Virginia Code § 18.2-48, and one count of animate sexual object penetration in violation of Virginia Code § 18.2-67.2.² The other three felonies occurred on August 6, 1996 — one count each of abduction, robbery, and use of a firearm. At the time of his conviction, Plaintiff was ineligible for parole under Virginia Code § 53.1-165.1(A), which provided that "[a]ny person sentenced to a term of incarceration for a felony offense committed on or after January 1, 1995, shall not be eligible for parole upon that offense."

In 2000, the Supreme Court of Virginia considered a case in which a trial court denied a defendant's request for a jury instruction informing the jury that parole had been abolished in Virginia. Fishback v. Commonwealth, 260 Va. 104, 110, 532 S.E.2d 629, 631 (2000) ("the appeal was limited to the issue of whether the trial court 'erred in refusing appellant's proffered penalty phase instruction that parole has been abolished in Virginia' ").³ The Supreme Court of Virginia in Fishback reversed its prior decision in Coward v. Commonwealth, 164 Va. 639, 178 S.E. 797 (1935), which had held that "a jury should not be instructed upon the possibility of parole," because it would allow the jury to speculate on "what might occur thereafter during the executive department's administration of the sentence imposed." 260 Va. at 111, 114, 532 S.E.2d at 631, 633. In Fishback, the Supreme Court of Virginia noted that significant statutory enactments since Coward limited the executive branch's ability to "modify[ ] the sentences imposed on defendants by the judicial branch" and that it was not only "appropriate, but requisite [sic], that we reconsider the policy underlying the Coward rule." Fishback, 260 Va. at 112-13, 532 S.E.2d at 632. With the abolition of parole, Fishback found "[t]he executive branch no longer ha[d] the discretion to grant or deny parole because [Virginia Code § 53.1-165.1(A)] abolishes parole . . . . [and that] in the context of achieving the goal of 'truth in sentencing,' it simply defie[d] reason that" a jury should not be instructed that parole had been abolished. 260 Va. at 114, 532 S.E.2d at 633. To address the abolition of parole and other forms of early release and sentence reduction, Fishback held

that henceforth juries shall be instructed, as a matter of law, on the abolition of parole for non-capital felony offenses committed on or after January 1, 1995 pursuant to Code § 53.1-165.1. In addition, because Code § 53.1-40.01 is in the nature of a parole statute, where applicable juries shall also be instructed on the possibility of geriatric release pursuant to that statute.

260 Va. at 115-116, 532 S.E.2d at 634. Fishback expressly held that this "new rule of criminal procedure [was] limited prospectively to those cases not yet final on" June 9, 2000. Id. at 116, 532 S.E.2d at 634.

At a special Session of the Virginia General Assembly in 2020, the General Assembly amended § 53.1-165.1⁴ by adding the following language:

B. The provisions of this article shall apply to any person who was sentenced by a jury prior to June 9, 2000, for any felony offense committed on or after January 1, 1995, and who remained incarcerated for such offense on July 1, 2020, other than (i) a Class 1 felony or (ii) any of the following felony offenses where the victim was a minor: (a) rape in violation of § 18.2-61; (b) forcible sodomy in violation of § 18.2-67.1; (c) object sexual penetration in violation of § 18.2-67.2; (d) aggravated sexual battery in violation of § 18.2-67.3; (e) an attempt to commit a violation of clause (a), (b), (c), or (d); or (f) carnal knowledge in violation of § 18.2-63, 18.2-64.1, or 18.2-64.2.

C. The Parole Board shall establish procedures for consideration of parole of persons entitled under subsection B consistent with the provisions of § 53.1-154.

D. Any person who meets eligibility criteria for parole under subsection B and pursuant to § 53.1-151 as of July 1, 2020, shall be scheduled for a parole interview no later than July 1, 2021, allowing for extension of time for reasonable cause.

Thus, the question presented by the motion to dismiss is whether plaintiff has stated a claim for a violation of his equal protection rights based on the 2020 Amendment only providing a remedy to those sentenced by a jury prior to June 2000 and nor providing an opportunity for parole for those, like plaintiff, sentenced by a judge.

II. Standard of Review

"A motion to dismiss pursuant to Rule 12(b)(6) tests the sufficiency of the claims pled in a complaint." ACAFin. Guar. Corp. v. City of Buena Vista, 917 F.3d 206, 211 (4th Cir. 2019). The Federal Rules of Civil Procedure require that the pleading contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a). This pleading standard "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "Labels, conclusions, recitation of a claim's elements, and naked assertions devoid of further factual enhancement will not suffice to meet the Rule 8 pleading standard." ACAFin. Guar. Corn., 917 F.3d at 211.

To meet the Rule 8 standard and "survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). To contain sufficient factual matter to make a claim plausible, the factual content must "allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "Although the truth of well-pleaded facts is presumed, a court is not bound by the 'legal conclusions drawn from the facts' and 'need not accept as true unwarranted inferences, unreasonable conclusions, or arguments.' " Riddick v. Watson, 503 F. Supp. 3d 399, 410 (E.D. Va. 2020) (quoting E. Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000)).

To succeed on an equal protection claim, Plaintiff "must first demonstrate that he has been treated differently from others with whom he is similarly situated and that the unequal treatment was the result of intentional or purposeful discrimination." Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001). Only if he has satisfied both elements of an equal protection claim will a court consider, in the prison context, whether a classification was "reasonably related to legitimate penological interests." Id. at 655 (quoting Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987)).

But that showing does not secure the claim, as the plaintiff must also plausibly allege that the disparity was not justified under the appropriate level of scrutiny. [Martin v. Duffy, 858 F.3d 239, 252 (4th

...