Carroll v. Johnson

PRESENT: Keenan, Koontz, Kinser, Lemons, Goodwyn, and
Millette, JJ., and Lacy, S.J.

JOHN JAY CARROLL
OPINION BY
v. Record No. 082566 JUSTICE LEROY F. MILLETTE, JR.
November 5, 2009
GENE M. JOHNSON, DIRECTOR OF
THE DEPARTMENT OF CORRECTIONS

FROM THE CIRCUIT COURT OF STAFFORD COUNTY
Charles S. Sharp, Judge

This appeal from an order dismissing a petition for a

writ of habeas corpus presents two issues. First, whether a

circuit court has jurisdiction over a petition for a writ of

habeas corpus when an order entered in the petitioner’s favor

would apply a credit for time served against a current

sentence, but would not result in his immediate release from

confinement. Second, whether the circuit court erred when it

ruled that John J. Carroll’s petition lacked merit and denied

Carroll an evidentiary hearing to resolve whether he was

entitled to a credit toward his sentence for time served

awaiting trial in Virginia on a detainer from another state.

Facts and Proceedings

Applying familiar principles of appellate review, we will

state the facts in the light most favorable to the

Commonwealth, the prevailing party below. Williams v.

Commonwealth, 278 Va. 190, 191, 677 S.E.2d 280, 281 (2009).
 Carroll was serving a prison sentence in New Jersey when

he was brought to Virginia pursuant to the Interstate

Agreement on Detainers, 1 Code § 53.1-210, to face trial for

criminal offenses in Stafford County. Carroll was housed in a

Virginia jail while awaiting trial. After his trial, Carroll

was convicted of two offenses and sentenced to a total term of

imprisonment of 13 years, with the sentences running

consecutively. The sentencing order stated: “The defendant

shall be given credit for time spent in confinement while

awaiting trial pursuant to Code § 53.1-187.” 2 The order also

stated: “These sentences shall run consecutively with all

other sentences.” Shortly after his trial was concluded,

Carroll was sent back to New Jersey to serve the remainder of

his sentence in that state. In total, Carroll spent 288 days

in Virginia custody before being returned to New Jersey.

After Carroll finished serving his New Jersey sentence he

was brought back to Virginia to serve his 13 year sentence on

1
For a history of the promulgation of the Agreement, see,
e.g., United States v. Ford, 550 F.2d 732, 740 n.24 (2nd Cir.
1977) (citing James V. Bennett, The Last Full Ounce, 23 Fed.
Prob. 20, 22-23 (1959)).
2
Code § 53.1-187 provides, in pertinent part:

Any person who is sentenced to a term of
confinement in a correctional facility shall
have deducted from any such term all time
actually spent by the person . . . in a state
or local correctional facility awaiting trial
. . . .

2
the two offenses for which he was convicted. Shortly after

his arrival, Carroll was given an “update sheet” from the

Virginia Department of Corrections (VDOC) which indicated that

he did not receive credit toward his Virginia sentence for the

288 days he spent in custody in Virginia incident to his

trial. Carroll corresponded with VDOC seeking credit for the

288 days, but VDOC denied such credit noting that the 288 days

counted towards Carroll’s New Jersey sentence, not his

Virginia sentence.

Thereafter, Carroll filed a petition for a writ of habeas

corpus challenging VDOC’s refusal to give him 288 days credit

towards his Virginia sentence for the time he spent “in

Virginia’s custody on the Stafford charges.” The

Commonwealth, on behalf of the respondent, filed an answer and

a motion to dismiss. The Commonwealth argued that the circuit

court lacked habeas corpus jurisdiction over Carroll’s claim

because an order entered in his favor would not result in his

immediate release from detention, but would only result in 288

days of jail credit toward his 13 year sentence. The

Commonwealth also asserted that Carroll’s claim is without

merit because Virginia “borrowed” Carroll from New Jersey

authorities for court purposes under the Interstate Agreement

on Detainers. When Carroll came to Virginia he was serving

his New Jersey time, and he received credit for 288 days

3
toward his New Jersey sentence pursuant to the Interstate

Agreement on Detainers.

The Commonwealth provided the circuit court with an

affidavit by Wendy K. Brown, Manager of VDOC’s Court and Legal

Services Section for VDOC, who is responsible for computing

inmates’ sentences. Ms. Brown stated that Carroll was

initially “borrowed” from New Jersey pursuant to the

Interstate Agreement on Detainers, and while he was physically

held in Virginia, he was still serving his New Jersey

sentence. Ms. Brown also stated that the 288 days were

credited toward Carroll’s New Jersey sentence, thus Carroll

was not entitled to credit toward his Virginia sentence for

the same time.

The circuit court denied Carroll’s petition for a writ of

habeas corpus. The circuit court held that it did “not have

habeas corpus jurisdiction over [Carroll’s] claim because even

a result in his favor would not result in his immediate

release from confinement.” Furthermore, assuming the circuit

court had habeas corpus jurisdiction, it denied Carroll’s

petition on the merits holding that “according to the

affidavit evidence presented to the Court, the Petitioner has

been properly credited with time he spent in jail towards his

sentence in another state.”

We awarded Carroll this appeal.

4
 Analysis

I. Jurisdiction

Carroll argues that the circuit court erred in holding

that it did not have jurisdiction over his habeas corpus claim

because a credit of 288 days against his Virginia sentence

would not result in his immediate release from detention.

Carroll contends that an “immediate release” from detention is

not required for habeas corpus jurisdiction. According to

Carroll, habeas corpus jurisdiction should lie when the relief

sought will directly impact the duration of the petitioner’s

custody or incarceration.

The Commonwealth agrees with Carroll on this issue. The

Commonwealth further asserts that the viability of the

“immediate release rule,” as established in McDorman v. Smyth,

187 Va. 522, 525, 47 S.E.2d 441, 443 (1948), is called into

question in light of subsequent statutory amendments, United

States Supreme Court decisions, and decisions of this Court.

The Commonwealth contends this Court should find habeas corpus

jurisdiction is available where the effect of an order entered

in the petitioner’s favor will result in shortening time the

petitioner must serve in confinement.

In McDorman, this Court adopted the “immediate release

rule,” which provides that habeas corpus jurisdiction lies

only where the release of the petitioner from his immediate

5
detention will follow as a result of a judgment in his favor.

We stated:

Habeas corpus is a writ of inquiry granted to
determine whether a person “is detained without
lawful authority.” Virginia Code, 1942 (Michie),
section 5848. It is available only where the
release of the prisoner from his immediate detention
will follow as a result of an order in his favor.
It is not available to secure a judicial
determination of any question which, even if
determined in the prisoner’s favor, could not affect
the lawfulness of his immediate custody and
detention. It cannot be used to modify or revise a
judgment of conviction. McNally v. Hill, 293 U.S.
131, 55 S. Ct. 24, 79 L. Ed. 238 [(1934)].

Id. at 525, 47 S.E.2d at 443-44 (emphasis added).

When McDorman was decided, VDOC calculated service of

individual sentences seriatim, and McDorman, who was serving a

series of sentences, contended that some of his sentences,

which were to take effect at the expiration of his current

sentence, were invalid. Id. at 523-25, 47 S.E.2d at 443. We

determined that the sentence McDorman was currently serving at

the time of the petition was valid, and dismissed his petition

because even a successful claim against sentences he had not

yet begun serving would not result in his immediate release.

Id. at 529, 525, 47 S.E.2d at 445, 443.

Subsequent to McDorman, the scope of the writ of habeas

corpus was expanded. Current Code § 8.01-654(B)(3) provides

that a petitioner “may allege detention without lawful

authority through challenge to a conviction, although the

6
sentence imposed for such conviction is suspended or is to be

served subsequently to the sentence currently being served by

petitioner.” Pursuant to the current statutory authority, a

defendant in the same situation as McDorman could challenge a

conviction that he had not yet begun to serve, even though a

successful challenge would not result in his immediate

release.

Recently, we found jurisdiction to grant a writ of habeas

corpus for a defendant to challenge one of two concurrent

sentences on two manslaughter convictions. West v. Director,

Dep’t of Corrs., 273 Va. 56, 639 S.E.2d 190 (2007). We stated

that our decision would result in his release from immediate

detention on that conviction and sentence, which complied with

“the purpose and scope of the writ of habeas corpus, which is

to test the legality of a prisoner’s detention.” Id. at 66,

639 S.E.2d at 197.

When this Court decided McDorman, we specifically relied

on the United States Supreme Court’s decision in McNally v.

Hill, 293 U.S. 131 (1934), in adopting the “immediate release

rule.” However, the “immediate release rule” has since been

called into question because the McNally decision was

overruled by the Supreme Court in Peyton v. Rowe, 391 U.S. 54

(1968). In Peyton, the Supreme Court stated:

7
 [T]o the extent that McNally relied on the notion
that immediate physical release was the only remedy
under the federal writ of habeas corpus, it finds no
support in the statute and has been rejected by this
Court in subsequent decisions.

We overrule McNally and hold that a prisoner serving
consecutive sentences is “in custody” under any one
of them for purposes of [28 U.S.C.] § 2241 (c)(3).
This interpretation is consistent with the statutory
language and with the purpose of the writ of habeas
corpus in the federal courts.

Id. at 67.

In Peyton, the Supreme Court noted several practical

reasons for abrogating the “immediate release rule,” including

the advantage in having the trial court resolve factual

disputes and the detriment to the petitioner of possible

confinement in excess of his lawful sentence if he is required

to wait until almost the end of that sentence to litigate his

complaint:

Clearly, to the extent that the rule of McNally
postpones plenary consideration of issues by the
district courts, it undermines the character of the
writ of habeas corpus as the instrument for
resolving fact issues not adequately developed in
the original proceedings.

. . . .

But the prematurity rule of McNally in many
instances extends without practical justification
the time a prisoner entitled to release must remain
in confinement. . . . [E]ach day they are
incarcerated under those convictions while their
cases are in the courts will be time that they might
properly have enjoyed as free men.

Id. at 63-64.

8
 The Supreme Court’s decision in Peyton was based on

historical use of the writ of habeas corpus under common law

and the language of the federal habeas corpus statute, 28

U.S.C. § 2241(c)(3) (2006 & Supp. I 2007). 3 In Peyton, the

Supreme Court held that a petitioner serving consecutive

sentences is “in custody” under any of the sentences for

purposes of the federal habeas corpus statute. For additional

support, the Supreme Court further noted that “[s]ince 1874,

the habeas corpus statute has directed the courts to determine

the facts and dispose of the case summarily, ‘as law and

justice require.’ ” Id. at 66-67 (citation omitted).

A few years after Peyton was decided, in Preiser v.

Rodriguez, 411 U.S. 475 (1973), the Supreme Court again

addressed whether federal habeas corpus was the appropriate

remedy when an order entered in the petitioner’s favor would

not result in his immediate release. The Court concluded:

Even if the restoration of the respondents’ credits
would not have resulted in their immediate release,
but only in shortening the length of their actual
confinement in prison, habeas corpus would have been
their appropriate remedy. For recent cases have
established that habeas corpus relief is not limited
to immediate release from illegal custody, but that

3
28 U.S.C. § 2241, in pertinent part, provides:
(c) The writ of habeas corpus shall not extend to a
prisoner unless . . .
(3) He is in custody in violation of the
Constitution or laws or treaties of the United
States.

9
 the writ is available as well to attack future
confinement and obtain future releases.

Id. at 487 (emphasis added).

The Supreme Court’s decisions in Peyton and Preiser

strongly support the argument that the “immediate release

rule” requiring immediate release from detention should be

abrogated in Virginia. We agree with the parties that the

“immediate release rule” as established in McDorman needs to

be readdressed in light of statutory changes and subsequent

United States Supreme Court authority. We, therefore,

overrule McDorman to the extent that habeas corpus

jurisdiction is predicated upon an immediate release from

detention.

A reversal of McDorman is not only predicated by the

language of Code § 8.01-654(B)(3), but also by the practical

and fairness considerations expressed by the Supreme Court in

Peyton and Preiser. Circuit courts are well suited to resolve

factual disputes related to convictions and sentences.

Furthermore, it is obvious that factual disputes of this

nature are more accurately resolved when the events are fresh

and memories clear. Moreover, there is nothing in our habeas

corpus jurisprudence which requires a petitioner to wait so

long to pursue this remedy that he or she is at peril of being

10
required to serve a sentence longer than his or her lawful

sentence while his or her dispute is being resolved.

The holding of McDorman also relies on an unnecessarily

narrow interpretation of Virginia’s habeas corpus statute.

Code § 8.01-654(A)(1) provides:

The writ of habeas corpus ad subjiciendum shall be
granted forthwith by the Supreme Court or any
circuit court, to any person who shall apply for the
same by petition, showing by affidavits or other
evidence probable cause to believe that he is
detained without lawful authority.

(Emphasis added.)

The statute extends the availability of the writ of

habeas corpus to prisoners who claim they are “detained

without lawful authority.” In interpreting this language, we

are guided by the principle of statutory construction that

remedial statutes are to be construed liberally. Greenberg v.

Commonwealth, 255 Va. 594, 600, 499 S.E.2d 266, 269 (1998).

Additionally, we must consider the ordinary and plain meaning

of statutory terms. Winborne v. Virginia Lottery, 278 Va.

142, 148, 677 S.E.2d 304, 306 (2009).

So viewed, the statutory phrase “detained without lawful

authority” does not limit the availability of a writ of habeas

corpus to situations in which a result in the petitioner’s

favor will result in his or her immediate release. Rather,

Code § 8.01-654(A)(1) allows a petitioner to challenge the

11
lawfulness of the entire duration of his or her detention so

long as an order entered in the petitioner’s favor will result

in a court order that, on its face and standing alone, will

directly impact the duration of the petitioner’s confinement.

Here, Carroll is “detained” for 13 years pursuant to his

sentencing order, which includes the 288 days for which he is

seeking credit. Thus, Carroll is “detained without lawful

authority” within the meaning of the statute if his sentence,

including the 288 days for which he seeks credit, is imposed

without lawful authority. Based on Carroll’s claim, an order

entered in his favor would result in a court order that, on

its face and as a matter of law, would directly impact the

duration of Carroll’s imprisonment by shortening his sentence

by 288 days. Therefore, the circuit court erred in holding

that it did not have habeas corpus jurisdiction to entertain

Carroll’s claim.

Just as the Supreme Court in Peyton decided that the

language “in custody” in the federal habeas corpus statute

does not impose an “immediate release rule,” 391 U.S. at 67,

the language “detained without lawful authority” in Code

§ 8.01-654(A)(1) does not impose an “immediate release rule”

in the Virginia system. Our interpretation of Code § 8.01-

654(A)(1) also assures that

12
 [m]eaningful factual hearings on alleged
constitutional deprivations can be conducted before
memories and records grow stale, and at least one
class of prisoners will have the opportunity to
challenge defective convictions and obtain relief
without having to spend unwarranted months or years
in prison.

Peyton, 391 U.S. at 65.

Our decision today does not dramatically expand habeas

corpus jurisdiction. Our holding only concerns cases in which

an order, entered in the petitioner’s favor, interpreting a

conviction or a sentence, will, as a matter of law and

standing alone, directly impact the duration of a petitioner’s

confinement. Our holding does not extend habeas corpus

jurisdiction to cases in which an order entered in the

petitioner’s favor will only give rise to a possibility of

reducing the petitioner’s term of imprisonment. Thus,

disputes which only tangentially affect an inmate’s

confinement, such as prison classification issues concerning

the rate at which a prisoner earns good conduct or sentence

credits, or challenges to parole board decisions, are not

proper matters for habeas corpus jurisdiction because an order

entered in the petitioner’s favor in those cases will not

result in an order interpreting convictions or sentences that,

on its face and standing alone, will directly impact the

duration of the petitioner’s sentence. See Virginia Parole

Board v. Wilkins, 255 Va. 419, 420-21, 498 S.E.2d 695, 695

13
(1998) (while relying on the “immediate release rule,” we held

the circuit court did not have habeas corpus jurisdiction over

petitioner’s challenge to the Parole Board’s denial of

discretionary parole and a two year deferral of the next

parole review).

II. Merits of Carroll’s Habeas Corpus Claim

Having decided that habeas corpus jurisdiction lies in

Carroll’s case, we now review the circuit court’s

determination that Carroll’s habeas corpus claim lacked merit.

Carroll contends that the circuit court erred in holding

that, assuming it had jurisdiction, Carroll was not entitled

to relief because he had been given credit towards his New

Jersey sentence for the 288 days spent in Virginia custody.

Carroll argues that the language of the sentencing order and

Code § 53.1-187 are clear and require that he be credited with

288 days toward his Virginia sentence regardless of whether

New Jersey also gave him credit for those days.

Alternatively, should the Court determine that it is relevant

whether New Jersey gave him credit for the 288 days, Carroll

asserts the circuit court erred in denying Carroll an

evidentiary hearing on this issue because Ms. Brown’s claim

that New Jersey gave Carroll credit for the 288 days is

“nothing more than a bare assertion.”

14
 The Commonwealth argues that the circuit court did not

err in holding that Carroll’s claim lacked merit. According

to the Commonwealth, Carroll’s New Jersey sentence was

properly credited the 288 days by operation of law pursuant to

the Interstate Agreement on Detainers while Carroll was in

Virginia custody incident to his trial. The Commonwealth

asserts that Carroll’s argument that he is entitled to credit

for the 288 days toward both his Virginia and New Jersey

sentences is without merit based on the sentencing order’s

language that “[t]hese sentences shall run consecutively with

all other sentences.” The Commonwealth also contends the

circuit court properly denied Carroll an evidentiary hearing

because Carroll received credit for 288 days toward his New

Jersey sentence by operation of law, and Carroll has not

claimed in his petition for a writ of habeas corpus that New

Jersey did not credit the 288 days against his sentence in

that state.

The standard of review regarding the circuit court’s

decision denying Carroll’s petition on the merits is as

follows:

The question whether a prisoner is entitled to
habeas relief is a mixed question of law and fact.
Consequently, a circuit court’s conclusions of law
are not binding on this Court but are subject to
review to ascertain whether the circuit court
correctly applied the law to the facts.

15
Green v. Young, 264 Va. 604, 608-09, 571 S.E.2d 135, 138

(2002) (citations omitted).

As previously stated, Code § 8.01-654(A)(1), provides:

The writ of habeas corpus ad subjiciendum shall be
granted forthwith by the Supreme Court or any
circuit court, to any person who shall apply for the
same by petition, showing by affidavits or other
evidence probable cause to believe that he is
detained without lawful authority.

(Emphasis added.)

The issue before us is whether there is probable cause to

believe that Carroll is detained without lawful authority

based upon the allegation that he did not receive credit

towards his Virginia sentence for the 288 days he spent in

Virginia custody incident to his trial. Because we believe

Carroll is not entitled to credit for 288 days toward his

Virginia sentence as a matter of law, the circuit court did

not err in denying Carroll’s petition for a writ of habeas

corpus on the merits and likewise denying him an evidentiary

hearing.

Carroll’s transfer to Virginia from New Jersey was made

pursuant to the Interstate Agreement on Detainers, of which

Virginia and New Jersey are party states. Code § 53.1-210;

N.J. Stat. Ann. §§ 2A:159A-1, through -159A-15. The

Interstate Agreement on Detainers, Article V(a), provides that

a state in which a prisoner is currently incarcerated (sending

16
state), in this case New Jersey, may send that prisoner to a

state in which the prisoner has outstanding charges (receiving

state), in this case Virginia, to stand trial. Code § 53.1-

210. The Interstate Agreement on Detainers, Article V(d),

describes this as “temporary custody,” which it provides is

only for the purpose of permitting prosecution on
the charge or charges contained in one or more
untried indictments, informations or complaints
which form the basis of the detainer or detainers or
for prosecution on any other charge or charges
arising out of the same transaction.

The Interstate Agreement on Detainers, Article V(f), also

provides that the sending state sentence continues to run
4
during an inmate’s temporary custody in another jurisdiction:

During the . . . temporary custody . . . time being
served on the sentence [imposed by the sending
state] shall continue to run . . . .

The Interstate Agreement on Detainers, Article V(g),

further states:

For all purposes other than that for which temporary
custody as provided in this agreement is exercised,
the prisoner shall be deemed to remain in the
custody of and subject to the jurisdiction of the
sending state and any escape from temporary custody
may be dealt with in the same manner as an escape
from the original place of imprisonment or in any
other manner permitted by law.

4
During the period involved in this case, the pertinent
language appearing in the comparable provision of the New
Jersey implementation of the Interstate Agreement on Detainers
was identical to the Virginia Code version. See N.J. Stat.
Ann. § 2A:159A-5, art. V(f).

17
 The plain language of the Interstate Agreement on

Detainers provides that Virginia only gained “temporary

custody” of Carroll during the 288 days he spent in Virginia

incident to his trial. Code § 53.1-210, art. V(d). The

statutory language narrowly defines such “temporary custody”

and limits its scope to allow the receiving state to only

prosecute the transferred prisoner for the charges for which

the transfer was made. Under the Interstate Agreement on

Detainers, Carroll remained a New Jersey prisoner and received

credit toward his New Jersey sentence for time spent in

Virginia. Thus, our inquiry focuses on whether, under

Virginia law, Carroll is also entitled to credit toward his

Virginia sentence for those same 288 days. Code § 53.1-187

provides, in pertinent part:

Any person who is sentenced to a term of confinement
in a correctional facility shall have deducted from
any such term all time actually spent by the person
. . . in a state or local correctional facility
awaiting trial . . . .

The sentencing order in this case reflected this mandate

when it provided that Carroll “shall be given credit for time

spent in confinement while awaiting trial pursuant to Code

§ 53.1-187.” The decisive factor is whether Carroll was in

Virginia custody “awaiting trial” during the 288 days. The

Interstate Agreement on Detainers makes it clear that he was

not. As previously stated, Carroll was transferred to

18
Virginia for the sole purpose of being tried on his pending

Virginia charges. The Interstate Agreement on Detainers

strictly limits Virginia’s “temporary custody” in such

situations. As such, Carroll was not in Virginia custody

“awaiting trial,” but was in Virginia custody to stand trial

pursuant to the Interstate Agreement on Detainers as a New

Jersey prisoner.

While Carroll was in Virginia custody, he was actually

serving his New Jersey sentence because the Interstate

Agreement on Detainers provides that he receive credit toward

his New Jersey sentence for that time. Code § 53.1-210, art.

V(f); N.J. Stat. Ann. § 2A:159A-5, art. V(f). Thus, as a

matter of law, Carroll is not entitled to credit toward his

Virginia sentence for the 288 days he spent in Virginia

custody incident to his trial because he was in Virginia’s

temporary custody as a New Jersey prisoner for the limited

purpose of being tried on his pending Virginia charges. In

addition, the Virginia sentencing order required that his

sentences of 13 years be served consecutively with all other

sentences, including the New Jersey sentence to which the 288

days were credited.

Because Carroll is not entitled to credit toward his

Virginia sentence as a matter of law, the circuit court did

not err in denying Carroll’s petition for habeas corpus on the

19
merits. The circuit court also did not err in denying Carroll

an evidentiary hearing because we determined that Carroll’s

claim, as a matter of law, is without merit, leaving nothing

to be determined by a factfinder.

Conclusion

The circuit court erred in holding that it did not have

habeas corpus jurisdiction over Carroll’s claim because an

order entered in his favor would have resulted in shortening

the time he must serve in confinement. For the reasons we

stated, the circuit court did not err in denying Carroll’s

petition for a writ of habeas corpus on the merits because,

under the Interstate Agreement on Detainers, and Virginia law,

Carroll was not entitled to credit for the 288 days he spent

in temporary custody in Virginia.

Reversed in part,
affirmed in part,
and final judgment.

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