No Rehearing for Violent Offender Parole Denial

(PUBLISHED ORDER) The 4th Circuit denies rehearing and rehearing en banc in this case in which a split panel held that plaintiff Virginia inmates did not state due process and ex post facto claims against defendant members of the Virginia parole board in their official capacities for an alleged policy of denying parole to parole-eligible inmates convicted of violent offenses.

Judge Niemeyer and Judge Floyd voted to deny the petition for rehearing. Judge Gregory voted to grant rehearing. In a poll of the court, Judge Gregory voted to grant rehearing en banc. Chief Judge Traxler and Judges Wilkinson, Niemeyer, Motz, King, Shedd, Duncan, Agee, Davis, Keenan, Wynn, Diaz, Floyd and Thacker voted to deny rehearing en banc.

The petition for rehearing is denied. The petition for rehearing en banc is also denied.

Dissent

Gregory, J., dissenting from the denial of rehearing en banc: The court was called upon to determine what process is due to inmates who have been granted a constitutionally protected liberty interest to be considered for parole. This court’s precedent offers unclear answers, leaving potential parolees’ Due Process rights woefully unsettled. Perhaps more important, Virginia’s parole system, as alleged by appellants, is fundamentally unfair to those being considered for parole. Because this case poses a question of exceptional importance, I respectfully dissent from my colleagues’ decision to deny rehearing en banc.

Burnette v. Fahey, No. 11-1324, Nov. 15, 2012. VLW 012-2-196, 6 pp.