DILLWYN CORRECTIONAL CENTER,
June 11, 1999
Record No. 981998
WARDEN OF THE DILLWYN
CORRECTIONAL CENTER, ET AL.
UPON A PETITION FOR A WRIT OF HABEAS CORPUS
Present: All the Justices
OPINION BY JUSTICE ELIZABETH B. LACY
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containing a prospective discharge date was superseded by a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,
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.
On March 20, Vincent was sentenced on the cocaine distribution
charge to eight years in prison with six years and six months
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 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
Sects. 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
Sect. 53-275, the predecessor of Code Sect. 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
Sect. 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
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 Sect. 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
* 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).