Vincent v. Warden of Dillwyn Correctional Center

Present: All the Justices

CEDRIC VINCENT

v. Record No. 981998 OPINION BY JUSTICE ELIZABETH B. LACY
June 11, 1999
WARDEN OF THE DILLWYN
CORRECTIONAL CENTER, ET AL.

UPON A PETITION FOR A WRIT OF HABEAS CORPUS

In this petition for a writ of habeas corpus, we consider

whether a certificate of discharge from probation supervision

containing a prospective discharge date was superseded by a

subsequent parole board warrant for the arrest and detention

of the parolee pending a parole revocation hearing.

The sequence of events is as follows. On August 14,

1997, Cedric Vincent was released from the Virginia Department

of Corrections on mandatory parole, with a minimum parole

supervision expiration date of February 14, 1998. As part of

the conditions of parole, Vincent acknowledged that his

failure to obey all federal, state, and local laws and

ordinances would subject him to arrest and revocation of

parole.

On August 21, one week after his release on parole,

Vincent was arrested by the Fairfax County Police Department,

charged with distribution of cocaine, and incarcerated in the

Fairfax County Jail. In September 1997, while incarcerated

pending a hearing on the drug charge, Vincent was charged with

and convicted of simple assault for an incident that occurred
in the jail. On January 21, 1998, Vincent pled guilty to and

was convicted of the cocaine distribution charge.

As a result of Vincent's convictions for simple assault

and distribution of cocaine, his parole officer prepared a

"Major Violation Report" charging Vincent with violating the

conditions of his parole. Based on this report, the Virginia

Parole Board (the Parole Board) issued a Board warrant

commanding his arrest for violation of his mandatory release

and commanding his detention "subject to further action of

said Board." The Board warrant was issued on February 2, 1998

and served on Vincent at the Fairfax County Jail on February

11, 1998.

Approximately one month later, March 12, 1998, a Fairfax

County probation and parole officer gave Vincent an undated

"Certificate of Discharge." This undated certificate,

generated sometime in early January 1998 by the Virginia

Department of Corrections Information Systems, directed that

"final Discharge be entered effective 2/14/98." The same day,

March 12, the probation and parole officer filed a presentence

report in Vincent's pending sentencing proceeding for his

cocaine distribution conviction. In the presentence report

the officer stated that

[a]lthough a Parole Board warrant was issued for
the above violations, the Parole Board elected to
administratively discharge Mr. Vincent from
parole on February 14, 1998.

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On March 20, Vincent was sentenced on the cocaine

distribution charge to eight years in prison with six

years and six months suspended.

On May 13, 1998, a Parole Board hearing was held to

determine whether Vincent's parole should be revoked. The

Parole Examiner recommended that parole be revoked based on

Vincent's admission of guilt to the charge of cocaine

distribution and his conviction for simple assault. The

Virginia Parole Board revoked Vincent's parole by letter dated

May 22, 1998. The Parole Board denied Vincent's appeal and he

filed this petition for a writ of habeas corpus, pro se. We

ordered that counsel be appointed for Vincent and briefs be

submitted by the parties.

Vincent argues that his Certificate of Discharge became

effective prior to the revocation of his parole and that,

because he was no longer a parolee at the time of the

revocation, the Parole Board did not have jurisdiction to

revoke his parole. Therefore, he concludes, his detention

pursuant to the revocation is unlawful. To hold otherwise, he

asserts, is fundamentally unfair and violates his due process

rights. We disagree.

A parolee's obligation to comply with the terms of his

parole continues until the parolee is discharged from parole.

Until that time, a parolee is subject to revocation of his

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parole by the Parole Board. In this case, Vincent violated a

condition of the parole supervision prior to the effective

date of his discharge from parole. The Parole Board had the

authority to institute revocation proceedings based on

Vincent's violations up until the effective date of his

discharge. The Board exercised that authority by issuing the

Board warrant for Vincent's arrest and detention on February

2, 1998. See Code §§ 53.1-136, and -161.

Issuing a board warrant for a parolee's arrest and

detention for an alleged violation of parole conditions is

inconsistent with ordering discharge from parole. Therefore,

because the action of the Parole Board instituting parole

revocation proceedings in this case occurred subsequent to its

setting of a prospective discharge date, but before the

discharge date, the subsequent action operated to nullify the

Board's prior action. The fact that Vincent received the

Certificate of Discharge after he received the Board warrant

does not alter this conclusion. The operative event was the

initiation of action by the Parole Board, not the subsequent

receipt of notice of the Board's action.

Vincent's reliance on Cook v. Commonwealth, 211 Va. 290,

176 S.E.2d 815 (1970), and Vick v. Commonwealth, 201 Va. 474,

111 S.E.2d 824 (1960), is misplaced. Those cases involved

probation revocation pursuant to former Code § 53-275, the

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predecessor of Code § 19.2-306, which required that the

revocation itself be completed within a statutorily prescribed

period. The provisions of Title 53.1 regarding revocation of

parole do not contain such a time limitation other than the

requirement that an individual is a "parolee" at the time of

the revocation and has not been validly discharged from

parole. See Code § 53.1-136(3). Further, unlike the facts of

this case, the periods of probation or suspension in those

cases had ended before the trial court took action to revoke

probation.

Finally, Vincent argues that because he, the probation

and parole officer who filed the presentence report in the

drug distribution charge, and the trial court sentencing him

for the drug distribution charge all relied on the validity of

the Certificate of Discharge, it is fundamentally unfair to

allow the Parole Board to revoke his parole. * Vincent asserts

that the sentence he received reflected the trial court's

inclination to allow him to seek a drug treatment program and

he contends that had the trial court known of his true parole

*
Vincent argues that the Parole Board is bound by the
representations of the parole and probation officer as
reflected in the presentence report that the Board had
discharged Vincent from parole. He cites no cases in support
of this proposition, and, to the extent he is asserting a
claim of estoppel, we have said that estoppel does not apply
to the government in the discharge of its governmental
functions. Gwinn v. Alward, 235 Va. 616, 621, 369 S.E.2d 410,
413 (1988).
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status, it might have made adjustments to accommodate that

status while allowing entry into the drug treatment program.

This argument falls short of raising due process

considerations.

What accommodations the trial court might have made in

Vincent's sentence had it known that the Parole Board might

revoke Vincent's parole is speculative at best. Indeed,

Vincent may have received a shorter sentence in light of the

erroneous statement that he had been discharged from parole.

More importantly, Vincent's discharge from parole was within

the discretion of the Parole Board. Code § 53.1-136(4). A

parolee does not have a fundamental or liberty interest in a

discretionary final discharge from parole. See James v.

Robinson, 863 F.Supp. 275, 276 (E.D.Va. 1994), aff'd 45 F.3d

426 (4th Cir. 1994), citing Greenholtz v. Inmates of the

Nebraska Penal & Correctional Complex, 442 U.S. 1, 7 (1979).

For the above reasons, we conclude that the Parole Board

had jurisdiction to revoke the parole of Vincent on May 22,

1998 and, therefore, that his detention pursuant to the

revocation is lawful. Accordingly, we deny the petition for a

writ of habeas corpus.

Petition denied.

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