Background
Donald Herrington filed a petition under 28 U.S.C. § 2254 and sought to appeal the Eastern District of Virginia’s order denying relief. His claim concerned whether Virginia law entitled him to additional earned sentence credit for time he spent in jail before his incarceration in a correctional facility pursuant to a final order of conviction.
Because the district court denied habeas relief, Herrington needed a certificate of appealability to proceed. The Fourth Circuit independently reviewed the record to determine whether he had made the required substantial showing of the denial of a constitutional right.
The Court’s Holding
The Fourth Circuit denied a certificate of appealability and dismissed the appeal. The court agreed with the district court that Herrington had not established an entitlement to additional earned sentence credit under Virginia law.
The court relied on Virginia Code § 53.1-202.2(A), which provides that eligibility for the earned-sentence-credit system begins upon incarceration in a correctional facility following entry of a final conviction order. It also cited the Supreme Court of Virginia’s decision in White v. Dotson, which rejected an identical claim for additional earned sentence credit.
The panel denied Herrington’s motions to expedite as moot and denied his motion to certify a question. It dispensed with oral argument because the written materials adequately presented the facts and legal contentions.
Key Takeaways
- A state prisoner may not appeal the denial of a § 2254 petition without a certificate of appealability.
- Herrington did not make the showing required for a certificate because Virginia law did not entitle him to the additional earned sentence credit he sought.
- Under the cited Virginia statute, eligibility for earned sentence credits begins upon incarceration in a correctional facility following entry of a final order of conviction.
Why It Matters
The unpublished decision applies Virginia’s statutory starting point for earned-sentence-credit eligibility and follows the Supreme Court of Virginia’s rejection of an identical claim. It also illustrates that a habeas appellant must clear the certificate-of-appealability threshold before the federal appellate court may hear the appeal.