ROGER W. TITUS, District Judge.
Before the Court is Petitioner Ronald Stanley's Complaint, which takes the form of a petition for writ of habeas corpus, in which he challenges his parole revocation and the subsequent calculation of his sentence as violating his due process rights. ECF No. 1. As redress, Stanley requests immediate release from custody. Stanley filed a Motion for Summary Judgment. ECF No. 10. Respondents, the State of Maryland, Maryland Parole Commission ("Parole Commission"), Maryland Division of Correction ("DOC"), Maryland Public Defender's Office, and Maryland Attorney General's Office, through counsel, filed an Answer. ECF No. 15. On June 27, 2013, Respondents filed a Supplemental Answer. ECF Nos. 24 and 25. The Court finds that this matter may be resolved without a hearing. See Local Rule 105.6 (D. Md. 2011). For the reasons set forth below, Stanley's Motion for Summary Judgment will be denied and his Complaint will be dismissed for failure to exhaust his claims.
On March 7, 1979, the Circuit Court for Wicomico County, Maryland, sentenced Stanley to serve a term of fifteen years for armed robbery, beginning on January 9, 1979, with a five-year consecutive term for use of a handgun in the commission of a felony, and three years to be served concurrently with the fifteen-year sentence for carrying a handgun. ECF No. 15, Affidavit of Judith Hemler, Exhibit 1, Attachment A. On the same day, the Circuit Court sentenced Stanley in a separate case to serve fifteen years consecutive to the sentence identified above. ECF No. 15, Exhibit 1, Attachment B. Thus, Stanley was sentenced to serve a total of thirty-five years imprisonment beginning on January 9, 1979. ECF No. 15, Exhibit 1, Attachment C. The maximum expiration date of his term was January 9, 2014. Id., line 4.
On March 26, 1990, Stanley was paroled. Affidavit of David R. Blumberg, Exhibit 2, Attachment A. Stanley's parole supervision was to continue until January 9, 2014, the maximum expiration date of his term. See id. (providing that "[t]he Parolee, upon release, shall be deemed to remain in legal custody until the expiration of the full, undiminished term and upon violation of any condition of his parole shall be remanded to the authority from which paroled, where a hearing shall be conducted by the Parole Commission. If parole is revoked, the Commission shall determine the amount of time spent on parole, if any, which shall be credited to the parolee."). On December 21, 2004, Commissioner Blount continued Stanley on parole with a reprimand for violating Rule 4 of the terms of his parole when Stanley was convicted of seconddegree assault in the Circuit Court for Anne Arundel County, Maryland. ECF No. 15, Exhibit 2, Attachment B.
On July 23, 2007, the Division of Parole and Probation asked the Parole Commission to issue a retake warrant for Stanley for failing to report to his agent since December 21, 2004, the day that he was continued on parole. On July 24, 2007, the Commission issued a retake warrant for Stanley charging him with failing to report to his agent since December of 2004, in violation of Rule 1 of his parole, and for moving without his agent's permission in violation of Rule 3 of his parole. ECF No. 15, Exhibit 2, Attachment D. Stanley's whereabouts were unknown. On January 20, 2012, Stanley returned to the DOC pursuant to the retake warrant. ECF No. 15, Exhibit 1, Attachment C, line 7.
1. Revocation Hearing
After a hearing on March 23, 2012, Commissioner Blount revoked Stanley's parole for violating Rules 1 and 3 by absconding from supervision. ECF No. 15, Exhibit 2, Attachment E. The Commissioner awarded Stanley credit for "street time" from March 26, 1990 to August 12, 2002, under Correctional Services Article ("CS") § 7-401(d)(1) ("If the order of parole is revoked, the commissioner hearing the parole revocation, in the commissioner's discretion, may require the inmate to serve any unserved portion of the sentence."). ECF No. 15, Exhibit 2, Attachment E. No diminution credits were revoked because Stanley was on parole, not mandatory supervision. See id.
2. Calculation of Sentence
The DOC recalculated Stanley's sentences to account for the parole revocation as follows. Stanley had been out of DOC custody for 7, 970 days, from March 26, 1990 to October 6, 2004, and from December 21, 2004 to January 20, 2012. ECF No. 15, Exhibit 1, Attachment C, lines 6 and 7. The Commission credited him for 4, 598 days (from March 26, 1990 to August 12, 2002). Id., line 7; Exhibit 2, Attachment E.
There is no statute authorizing a parole commissioner to revoke a parolee's diminution credits, although diminution credits may be lost by statute. See CS § 3-711 ("If an inmate is convicted and sentenced to imprisonment for a crime committed while on parole and the parole is revoked, diminution credits that were awarded before the inmate's release on parole may not be applied toward the inmate's term of confinement on return to the Division."). The statute does not apply in this case because Stanley received probation, not a "sentence of imprisonment, " for the second-degree assault offense he committed while on parole. ECF No. 15, n. 2.
Stanley received credit from the DOC for the periods he was in custody following the issuance of the parole retake warrant. See COMAR 12.08.01.22.F.7.g. ("[T]ime spent incarcerated following the issuance of a parole revocation warrant shall be awarded and credited" by the DOC). ECF No. 15, Exhibit 1, Attachment C, lines 6 and 7. Under these rules and given the facts presented, the DOC determined that Stanley "owed" 3, 372 days (7, 970 days - 4, 598 days). ECF No. 15, Exhibit 1, Attachment C, line 7. After adding the 3, 372 days to Stanley's January 9, 2014, original maximum expiration date, his maximum expiration was adjusted to April 4, 2023. See id. As of May 31, 2012, Stanley had earned or been awarded 2, 580 diminution credits. ECF No. 15, Exhibit 1, Attachment D. Subtracting these 2, 580 days from the April 4, 2023 maximum expiration date of the term resulted in an anticipated release date of March 11, 2016, as of May 31, 2012. See id.
On July 13, 2012, Stanley filed an Administrative Remedy Procedure request ("ARP") with the Warden, complaining that he was entitled to industrial and education credits for the years 1979 to 1983. ECF No. 15, Exhibit 1, Attachment E. On July 24, 2012, the DOC denied the ARP because the Commitment Office had credited all credits posted by Case Management in the Division's computerized recordkeeping system. ECF No. 15, Exhibit 1, Attachment F. Stanley appealed the response to the Commissioner of Correction. ECF No. 15, Exhibit 1, Attachment G. While the appeal was pending, the Commitment Office reviewed its handwritten commitment records and determined that Stanley was entitled to additional diminution credits. ECF No. 15, Exhibit 1, Attachment H, at p. 2.
On October 16, 2012, the Warden amended his response to indicate award of additional diminution credits covering, in part, the time period in question. See id. As a result of the additional credit, Stanley's mandatory supervision release date was changed from February 17, 2016 to April 29, 2015, and the Commissioner dismissed Stanley's appeal. ECF No. 15, Exhibit 1, Attachment I. By December 31, 2012, Stanley's record reflected that he had earned or been awarded 2, 916 diminution credits. ECF No. 15, Exhibit 1, Attachment L. After ...