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Miller v. Hejirika

United States District Court, D. Maryland

September 22, 2014

MARK MILLER, #223-952 Petitioner,
WARDEN HEJIRIKA, et al. Respondents.



Pending are Mark Miller's Petition for Writ of Habeas Corpus, supplement, and exhibits filed pursuant to 28 U.S.C. § 2254 and Respondents' Motion to Dismiss and exhibits.[1] The matter is ready for disposition.[2] After review of the pleadings, the court finds a hearing is unnecessary. See Local Rule 105.6 (D. Md. 2014). For the reasons that follow, the court will treat the Petition as filed pursuant to 28 U.S.C. § 2241. and dismiss the petition without prejudice for lack of exhaustion of available state remedies.


The court recognizes that Miller is a self-represented litigant, and has accorded the Petition liberal construction. See e.g. Hughes v. Rowe, 449 U.S. 5, 9 (1986). Although Miller's claims are not a model of clarity, it appears that he is alleging that he was denied due process of law when, after a parole commissioner found him in violation of the conditions of his parole and revoked his mandatory release, the commissioner also rescinded 1500 days of diminution credits, thereby changing the expiration date of Miller's term of confinement. Miller claims he is receiving "double-timing" because "[i]t's against the law to make a [sic] inmate do his time beyond his expiration date, which was originally 2-15-17, now its 2-15-20." (ECF 1, p. 8).[3]


Respondents state that Miller is serving a total 40-year term of confinement for six separate distribution of controlled dangerous substance convictions in the Circuit Court for Talbot County, Maryland, the first of which was on May 8, 1992. ECF 6, Ex. A; see also Md. Code Ann. Corr. Servs. ("CS") §3-701 (2) (iii) (2008 R.epl. Volume) ("Term of confinement" means the period from the first day of the sentence that begins first, through the last day of the sentence that ends last, for consecutive sentences.).[4] On February 24, 2012, Miller was released on mandatory supervision. (ECF 6, Ex. B; see also CS §7-501 (3) (stating the Division of Correction ("DOC") shall grant a conditional release from confinement to an inmate who has served the term or terms, less accrued diminution of confinement credits.)); see also CS §7-502 (a) - (b) (An individual on mandatory supervision remains in legal custody until the expiration of the individual's full term, and during the period of mandatory release is subject to all laws, rules, reuulations and conditions that apply to parolees, and any special conditions established by a parole commissioner.).

On May 31, 2013, Parole Commissioner Jasper R. Clay determined Miller had violated the terms of his mandatory release by failing to report to his supervising agent on November 13, 2012, or any time thereafter. (Ex. B; see also CS §7-502 (b)). The Parole Commissioner revoked Miller's mandatory supervision and rescinded 1, 500 diminution of confinement credits. (Ex. B; see also CS §7-504 (b) (A parole commissioner presiding at an individual's mandatory supervision revocation hearing "may revoke any or all of the diminution credits previously earned by the individual on the individual's term of confinement"); see also CS §§3-702, X-XXX-XXX (stating an inmate is entitled to reduce his term of confinement by earning diminution of confinement credits for good conduct, work tasks, education, and special projects.) Miller was returned to the DOC to serve the remainder of his sentence, and his new maximum expiration date for his term of confinement is in 2020. (ECF 1, p. 10; ECF 6, p. 2).


In their answer, respondents contend that the petition should be dismissed because Miller's claims are not cognizable under 28 U.S.C. § 2254, are unexhausted, and lack merit.

I. The Claims as Presented are not Cognizable under 28 U.S.C. § 2254

Title 28 U.S.C. § 2254 provides relief to persons in custody pursuant to the judgment of a state court on the ground that the custody is "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); see also Preiser v. Rodriguez, 411 U.S. 475, 486, 500 (1973) (stating the essence of habeas corpus is an attack by person in custody upon legality of that custody). Miller's Petition does not challenge his custody by attacking his underlying convictions, sentences, or the revocation of his mandatory release; rather, it challenges the rescission of his diminution credits and the calculation of his term of confinement. As such, the Petition does not state a cognizable claim far relief under 28 U.S.C. § 2254, but rather is more appropriately considered pursuant to 28 U.S.C. § 2241(c) (3) (providing for federal habeas relief where a prisoner is in custody in violation of the Constitution or laws of the United States).

II. Due Process

The Constitution does not create a protected liberty interest in the expectation of early release on parole. See Greenholtz v, Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1, 7 (1979) ("There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence.") Absent a protected liberty interest in parole, a prisoner typically cannot mount a challenge against a state parole review procedure on procedural or substantive due process grounds. See Johnson v. Rodriguez, 110 F.3d 299. 308 (5th Cir. 1997).

Generally speaking, sentence and diminution credit calculation disputes involving parole review procedures in a state penal system pertain to issues of state law and do not implicate a federal question. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). A violation of a state law which does not infringe upon a specific constitutional right is cognizable in federal habeas corpus proceedings only if it amounts to a "fundamental defect which inherently results in a complete miscarriage of justice." Halley v. Dorsey, 580 F.2d 112, 115 (4th. Cir. 1978) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). Where a "claim... rests solely upon an interpretation of [state] case law and statutes, it is simply not cognizable on federal habeas review." Wright v, Angelone, 151 F.3d 151. 157 (4th Cir. ...

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