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VIRGINIA PAROLE BOARD, ET AL. v. WILKINS (59963)


VIRGINIA
PAROLE BOARD, ET AL. v. WILKINS


February 27, 1998
Record No. 970628

VIRGINIA PAROLE
BOARD, ET AL.

v.

TRANCE W. WILKINS

OPINION BY SENIOR
JUSTICE ROSCOE B. STEPHENSON, JR.

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS

Verbena M. Askew,
Judge

Present: Carrico,
C.J., Compton, Lacy, Hassell, Keenan, and
Koontz, JJ., and Stephenson, Senior Justice


The dispositive
issue in this appeal is whether, in the circumstances of this
case, the trial court had jurisdiction to grant a writ of habeas
corpus.

Since April 1980,
Trance W. Wilkins has been detained by the Virginia Department of
Corrections pursuant to multiple convictions, including attempted
murder, robbery, and use of a firearm in the commission of a
felony. He is serving a total sentence of 143 years.

On April 5, 1996,
Wilkins filed the present pro se petition for a writ of habeas
corpus, challenging, in claims (a) through (z), the 1995 decision
of the Virginia Parole Board (the Board) to deny him
discretionary parole and defer for two years his next parole
review. The trial court appointed counsel to represent Wilkins.

The Board filed a
motion to dismiss Wilkins' petition, and, following a hearing,
the trial court, by an order entered January 2, 1997, granted the
motion to dismiss and dismissed with prejudice claims (a) through
(z). Nevertheless, the court, sua sponte, granted a writ of
habeas corpus, finding that Wilkins "was denied due process
when [the Board] deferred his 1996 annual parole review without
providing [Wilkins] with a reason for the deferral."
Accordingly, the court ordered that Wilkins "be reviewed for
parole in 1996 and that, if [the Board] exercises its discretion
to defer [Wilkins'] annual review in the future, [the Board] provide him with the reason(s) for the deferral."

The Board contends,
inter alia, that Wilkins' petition should be dismissed because
the trial court had no habeas corpus jurisdiction to grant the
relief it ordered. We agree.

Under the common
law, the purpose and scope of the writ of habeas corpus is to
test the legality of a prisoner's detention. The writ
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.[*]
[1]

McDorman v. Smyth,
187 Va. 522, 525, 47 S.E.2d 441, 443 (1948); accord McClenny v.
Murray, 246 Va. 132, 134, 431 S.E.2d 330, 331 (1993); Blowe v.
Peyton, 208 Va. 68, 73, 155 S.E.2d 351, 355-56 (1967); Peyton v.
Williams, 206 Va. 595, 601, 145 S.E.2d 147, 151 (1965); Smyth v.
Midgett, 199 Va. 727, 730, 101 S.E.2d 575, 578 (1958); Smyth v.
Holland, 199 Va. 92, 96-97, 97 S.E.2d 745, 748-49 (1957), cert.
denied, 357 U.S. 944 (1958).

The trial court's
determination in the present case does not affect the lawfulness
of Wilkins' immediate custody and detention, and Wilkins' release
from his immediate detention will not follow as a result of the
trial court's order. Consequently, the trial court did not have
habeas corpus jurisdiction to grant the relief it ordered.

Accordingly, the
judgment of the trial court will be reversed, and the petition
for a writ of habeas corpus will be dismissed.

Reversed and
dismissed.

 

 

 

 

FOOTNOTES:

[1] The scope of the common-law
writ of habeas corpus has been expanded by Code ?
8.01-654(B)(3), which provides that a petition for the writ
"may allege detention without lawful authority through
challenge to a conviction, although the sentence imposed for such
conviction is suspended or is to be served subsequently to the
sentence currently being served by [the] petitioner."

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