United States District Court, D. Maryland
Catherine C. Blake United States District Judge
McCleary has filed a petition for writ of habeas corpus,
challenging the Maryland Parole Commission's denial of a
face-to-face parole hearing. ECF 1. As relief, McCleary seeks
an order directing the Maryland Parole Commission to
"conform to the existing Maryland statutes by granting
[the petitioner] an immediate parole hearing based on the
denial of due process of law." Id., p. 5.
Respondent David Blumberg, chairman of the Maryland Parole
Commission, has moved to dismiss the petition on the basis
that McCleary's claim is moot. ECF 5. McCleary has
responded. ECF 8. The issues have been fully briefed, and no
hearing is necessary. See Local R. 105.6 (D. Md.
2014). The court will deny McCleary's motion to request a
hearing and dismiss his petition as moot.
February 10, 2006, McCleary was sentenced by the Circuit
Court for Worcester County to two 20-year consecutive terms
of confinement. ECF 1-2, p. 1. He received 290 days credit
for time served prior to sentencing. Id., p. 2. On
April 19, 2010, an amended commitment record was issued
reflecting that both sentences were subject to a
"[p]arole [e]ligibility [r]estriction of 10 years
minimum sentence before [McCleary] would be eligible for
[p]arole." Id., pp. 3-4. On March 13, 2015,
another amended commitment order was issued. ECF 1-2, pp.
5-6. The third commitment record reflected that one of
McCleary's two sentences was "subject to 10 year
mandatory minimum without parole, " while the other
sentence was "NOT subject to mandatory minimum without
parole." ECF 1-2, p. 6.
maintains that as a result of his appeal in the Maryland
Court of Special Appeals and the third commitment order, he
was eligible for a "‘face-to-face' parole
hearing" on April 25, 2015. ECF 1, p. 4. He further
claims that, under Maryland law, he was immediately eligible
for a parole hearing after completing 25% of his sentence.
Id. McCleary states that the "no parole"
condition of his sentence expired on the same date that he
completed 25% of this sentence. Id. McCleary says
the Maryland Parole Commission informed him that he would not
receive a face-to-face parole hearing until April 25, 2025,
and he is only entitled to administrative review prior to
that date. Id.
23, 2015, a Maryland Parole Commission hearing officer
conducted a hearing and recommended approving McCleary for an
unconditional parole. ECF 5-1, ¶ 4. Commissioner Meehan
disapproved that recommendation on July 29, 2015.
Id. Meehan recommended that McCleary's parole be
delayed until January 2017, conditioned upon
"McCleary's progression to pre-release security and
his successful completion of six to eight months of work
release." Id. McCleary's file was
automatically referred to a two-commissioner appellate panel
for issuance of a final parole decision. Id., ¶
5. On August 6, 2015, the appellate panel disapproved the
hearing officer's recommendation for unconditional parole
and approved McCleary for delayed parole release in January
2017, conditioned upon his completion of six to eight months
of work release. Id., ¶ 6; ECF 5-2.
habeas corpus petition is moot when it no longer presents a
case or controversy under Article III, § 2, of
the Constitution." Aragon v. Shanks, 144 F.3d
690, 691 (10th Cir. 1998) (citing Spencer v. Kemna,
523 U.S. 1, 7 (1998)). "This case-or-controversy
requirement subsists through all stages of federal judicial
proceedings, trial and appellate." Lewis v.
Continental Bank Corp., 494 U.S. 472, 477 (1990).
"The parties must continue to have a ‘personal
stake in the outcome' of the lawsuit." Id.
at 478 (quoting Los Angeles v. Lyons, 461 U.S. 95,
101 (1983)). "This means that, throughout the
litigation, the plaintiff ‘must have suffered, or be
threatened with, an actual injury traceable to the defendant
and likely to be redressed by a favorable judicial
decision.'" Spencer, 523 U.S. at 7 (quoting
Lewis, 494 U.S. at 477). McCleary has received the
relief he seeks, a face-to-face parole hearing. Therefore,
his petition is moot and will be dismissed.
has no absolute entitlement to appeal a district court's
denial of his habeas corpus request. See 28 U.S.C.
§ 2253(c)(1). A certificate of appealability
("COA") may issue "only if the applicant has
made a substantial showing of the denial of a constitutional
right." Id. at §2253(c)(2). When a
district court dismisses a habeas petition solely on
procedural grounds, a certificate of appealability will not
issue unless the petitioner can demonstrate both "(1)
‘that jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a
constitutional right' and (2) ‘that jurists of
reason would find it debatable whether the district court was
correct in its procedural ruling.'" Rose v.
Lee, 252 F.3d 676, 684 (4th Cir. 2001) (quoting
Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
McCleary has failed to demonstrate entitlement to a COA in
the instant case.
reasons stated above, the court will dismiss the petition as
moot and deny the request for a hearing. A certificate of
appealability will not issue.
separate order follows.
 Blumberg also argues that
McCleary's claim is barred because he has failed to
exhaust state remedies. For the reasons that follow, the
court need not ...