955 F2d 41 McDaniel v. W Murray

955 F.2d 41

Leon H. McDANIEL, Petitioner-Appellant,
v.
Edward W. MURRAY, Director, Department of Corrections; Mary
Sue Terry, Attorney General of Virginia; Samuel Pruett,
Warden; Russell Wilson, Manager of the Court and Legal Unit
of the Virginia Department of Corrections, Respondents-Appellees.

No. 90-6651.

United States Court of Appeals, Fourth Circuit.

Submitted Jan. 23, 1992.
Decided Feb. 21, 1992.

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. David G. Lowe, Magistrate Judge. (CA-90-121-R)

Leon H. McDaniel, appellant pro se.

Robert Harkness Herring, Jr., Assistant Attorney General, Richmond, Va., for appellees.

E.D.Va.

AFFIRMED IN PART AND DISMISSED IN PART.

Before WIDENER and MURNAGHAN, Circuit Judges, and BUTZNER, Senior Circuit Judge.

OPINION

PER CURIAM:


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1

Leon H. McDaniel appeals from the district court's order denying him relief on a petition filed initially under 28 U.S.C. § 2254 (1988), to which he later added claims brought under 42 U.S.C. § 1983 (1988). McDaniel claimed that his parole eligibility date (PED) was miscalculated by the Virginia Department of Corrections (DOC), that he was denied due process because the Department of Corrections failed to give him notice and a hearing before recomputing his PED, and that there was erroneous information in his prison file. McDaniel's due process and erroneous information claims are properly treated under 42 U.S.C. § 1983 (1988). We affirm the district court's dismissal of these two claims. McDaniel's claim that his PED date was miscalculated attacks the duration of his confinement and therefore, is properly treated as a habeas claim filed pursuant to 28 U.S.C. § 2254 (1988). As to this claim, we deny a certificate of probable cause and dismiss the appeal on the reasoning of the district court. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.

2

AFFIRMED IN PART AND DISMISSED IN PART.