UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MICHAEL ERIN SCOTT,
Petitioner-Appellee,

v.
                                                                      No. 96-6458
RONALD J. ANGELONE, Director of
the Virginia Department of
Corrections,
Respondent-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Henry C. Morgan, Jr., District Judge.
(CA-95-184)

Argued: October 30, 1996

Decided: November 21, 1996

Before MURNAGHAN, NIEMEYER, and MOTZ, Circuit Judges.

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Reversed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Mary Elizabeth Shea, Assistant Attorney General,
OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for
Appellant. Lauren Allan Parrott, Jr., KAUFMAN & CANOLES, P.C.,
Norfolk, Virginia, for Appellee. ON BRIEF: James S. Gilmore, III,
Attorney General of Virginia, Wirt P. Marks, IV, Assistant Attorney
General, OFFICE OF THE ATTORNEY GENERAL, Richmond,
Virginia, for Appellant.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

The Virginia Department of Corrections (VDOC) appeals the dis-
trict court's grant of a writ of habeas corpus to Michael Scott.
Because the district court erred in holding that the VDOC's applica-
tion of a Virginia parole statute violated Scott's constitutional rights,
we reverse.

The statute at issue here is Va. Stat. § 53.1-151(A) (Michie Supp.
1986). At the times relevant to this case that statute provided:

          Except as herein otherwise provided, every person convicted
          of a felony and sentenced and committed under the laws of
          this Commonwealth to the Department of Corrections or as
          provided for in § 19.2-308.1:

          1. For the first time, shall be eligible for parole after serv-
          ing one-fourth of the term of imprisonment imposed .. .

          2. For the second time, shall be eligible for parole after
          serving one-third of the term of imprisonment imposed
          ...

          3. For the third time, shall be eligible for parole after serv-
          ing one-half of the term of imprisonment imposed . ..

          4. For the fourth or subsequent time, shall be eligible for
          parole after serving three-fourths of the term of impris-
          onment imposed . . . .

          Only prior commitments interrupted by a person's being at
          liberty, or resulting from the commission of a felony while
          in a state correctional facility, shall be included in determin-

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          ing the number of times such person has been convicted,
          sentenced, and committed for the purposes of paragraphs 2,
          3 and 4 of subsection A. "At liberty" as used herein shall
          include not only freedom without any legal restraints, but
          shall also include . . . release on probation or parole . . . .
          In any case in which a parolee commits an offense while on
          parole, only the sentence imposed for such offense and not
          the sentence or sentences or any part thereof from which he
          was paroled shall constitute the term of imprisonment.

Va. Stat. § 53.1-151(A) (Michie Supp. 1986). The Felon Term Indica-
tor (FTI) for parole eligibility purposes under subsection (1) of this
statute is termed FTI-1; under subsection (2) it is termed FTI-2, and
so on.

In 1986, a Virginia court first convicted Michael Scott of a series
of crimes, including robbery. On the robbery charge, the court sen-
tenced Scott to 20 years imprisonment, with ten of those years sus-
pended. It is the FTI treatment of this ten year suspended sentence
that is at issue here.

In June 1988, Scott was released on parole from the 1986 sentence.
A year later, a different Virginia state court convicted Scott of several
other crimes, including grand larceny, for which he was sentenced to
twenty years imprisonment. In June 1990, the first state court revoked
its suspension of the ten years previously imposed in connection with
the 1986 robbery conviction. The VDOC calculated Scott's eligibility
for parole on this ten year sentence based on the FTI-2 standard.

VDOC asserts that use of the FTI-2 standard is correct because
§ 53.1-151(A) permits it to increase an inmate's FTI upon revocation
of a sentence previously suspended. VDOC maintains that "[e]ach
time the inmate has a felony, conviction, and commitment separated
by a period of liberty, his felon term indicator increases." Scott claims
that because the ten year originally suspended sentence stems from
the 1986 conviction, his first, his eligibility for parole in connection
with this sentence should be calculated pursuant to FTI-1.

Scott petitioned the Virginia Supreme Court for a writ of habeas
corpus, asserting that VDOC's use of the FTI-2 standard in connec-

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tion with the originally suspended 1986 sentence violated his consti-
tutional rights. The Virginia Supreme Court denied the writ without
discussion. Scott then filed a petition for a writ of habeas corpus in
federal court. A magistrate judge recommended that the writ be
granted, concluding that the VDOC had misinterpreted§ 53.1-151(A)
in applying FTI-2 status to Scott's 1986 sentence and so violated
Scott's rights under the Due Process and Ex Post Facto clauses of the
United States Constitution. The district court adopted the magistrate
judge's recommendation and granted the writ. This appeal followed.

Although the district court's interpretation of the Virginia parole
statute is reasonable, on this matter a federal court must defer to the
Virginia courts, which have apparently adopted the VDOC's interpre-
tation. Scott's counsel conceded at oral argument that the Virginia
Supreme Court decided the merits of Scott's claim in its summary
dismissal of his petition. We are bound by that decision. "Whether a
federal court would have reached the same conclusion in the first
instance is beside the point. The point is that Virginia reached that
conclusion, and its decision must be sustained." Vann v. Angelone, 73
F.3d 519, 523 (4th Cir. 1996). See Gholston v. Boles, 305 F.2d 162,
163 (4th Cir. 1962) ("It is not for us to interpret West Virginia's stat-
ute, however. Her interpretation, implicit in the denial by her highest
court of this prisoner's petition for habeas corpus, is binding upon us.
If we found fault with that interpretation, as the prisoner contends we
should, we would still be required to accept it.").

Scott contends that absolute deference to a state court's interpreta-
tion of its statutes as expressed through its denial of a habeas petition
renders the constitutional guarantee of habeas corpus a meaningless
one. But there is a great distinction between determining what a given
state statute means, and determining that the state statute, as inter-
preted by the state court, violates a federal law or the federal constitu-
tion. While a federal court can never sanction state statutes that
violate the United States Constitution, a federal court must allow
states to construe their statutes as they see fit, without interference.
Rejecting Virginia's interpretation of its own statute in this context
"would compromise important principles of federalism, undermine
state parole authorities, and install the federal judiciary as the final
arbiter in yet one more area of state law." Vann, 73 F.3d at 522. With

                     4
state parole decisions in particular, "[i]t is difficult to imagine a con-
text more deserving of federal deference. . . ." Id. at 521.

Thus, a federal court must take § 53.1-151(A) as the state court has
interpreted it, and determine whether that statute, as so interpreted,
places Scott "in custody in violation of the Constitution or laws or
treaties of the United States." 28 U.S.C.A. § 2254(a) (West 1994).
Because Scott makes no claim that §53.1-151(A), as written or
applied, was any different on the day of his first conviction than it is
today, his ex post facto claim must fail. See Weaver v. Graham, 450
U.S. 24, 30 (1981) ("Critical to relief under the Ex Post Facto Clause
is . . . the lack of fair notice and governmental restraint when the leg-
islature increases punishment beyond what was prescribed when the
crime was consummated.") (emphasis added).

For similar reasons, the VDOC has not deprived Scott of due pro-
cess. State law creates any liberty interest Scott has in parole. See
Franklin v. Shields, 569 F.2d 784, 788 (4th Cir.) (en banc) cert.
denied, 435 U.S. 1003 (1978). Our role is merely to ensure that state-
created rights have not been "arbitrarily abrogated." Wolff v.
McDonnell, 418 U.S. 539, 557 (1974). Because the VDOC has inter-
preted § 53.1-151(A) consistently with respect to suspended sen-
tences, it has not "arbitrarily" denied Scott any statutory right.

In sum, the district court misinterpreted its role. Our jurisprudence
dictates that on habeas, a federal court must accept a state's interpre-
tation of its own statutes. Even when a federal court feels that the
"plain meaning" of a statute requires an alternate interpretation, it
must follow the state's interpretation. So long as a state's interpreta-
tion of its own statutory scheme is consistent and does not violate fed-
eral law in any other way,* a federal court can not grant habeas relief
merely because it does not agree with the state Supreme Court's inter-
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*It is well settled law that "[t]here is no constitutional or inherent right
of a convicted person to be conditionally released before the expiration
of a valid sentence." Greenholtz v. Inmates of the Nebraska Penal and
Correctional Complex, 442 U.S. 1, 7 (1979).

                     5
pretation of its own law. The district court's order granting a writ of
habeas corpus is therefore

REVERSED.

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