United States District Court, D. Maryland
Xinis United States District Judge.
is Donald Foster, Sr.'s Petition for Writ of Habeas
Corpus challenging his confinement. Although the Petition is
filed on a court-approved form for seeking relief pursuant to
28 U.S.C. §2254, the court deems the case more properly
treated as a Petition for Writ of Habeas Corpus pursuant to
28 U.S.C. §2241 because it challenges the execution of
Foster's sentence. Respondents Tina Stump, Warden at the
Maryland Reception, Diagnostic and Classification Center and
Brian E. Frosh, Attorney General of Maryland, by their
counsel, have filed an Answer seeking dismissal of the
Petition for lack of exhaustion. The case is ripe for
disposition and no hearing is required. See Local
Rule 105.6 (D. Md. 2016). Upon review of the pleadings and
applicable law, the court will dismiss the Petition without
prejudice for lack of exhaustion and will decline to issue a
certificate of appealability.
December 11, 2014, Foster was sentenced in the Circuit Court
for Baltimore City to five years of incarceration, all but
two years suspended, and three years of probation, beginning
on March 27, 2014, for possession with intent to distribute
heroin in Case No. 114107026. The maximum expiration date of
this term of confinement was March 27, 2019. ECF 1, 2. On
January 23, 2015, the Circuit Court for Baltimore City
committed Foster to the custody of the Commissioner of
Correction for a period of three years because Foster
violated his probation with respect to a count in a previous
case, Case No. 106118029. The court directed this new
three-year sentence to run “consecutive to the last
sentence to expire of all outstanding and unserved Maryland
sentences.” ECF 6-3. The court also committed Foster to
serve three year sentences on five other counts in Case No.
1106118029 as well as Case No. 106118030. These five
sentences were to run concurrently with the three-year
sentence in count 1 of Case No. 106118029. Thus, the maximum
expiration date on Foster's confinement was adjusted
outward by three years from March 27, 2019 to March 27, 2022.
12, 2016, Foster came before the Circuit Court for Baltimore
City for a review hearing. The Court modified
Petitioner's sentence in Case No. 114107026 to 2 years, 3
months, and 15 days, or the time he had already served on the
sentence. ECF 6-4. As a result, the expiration date on the
sentence related to Case No. 114107026 was modified to July
12, 2016. However, the court's modification did not alter
Foster's three-year sentence with respect to Case No.
106118029. Because that sentence is a consecutive sentence,
it began to run upon the expiration of Foster's previous
sentence, i.e., on July 12, 2016. As a result, the maximum
expiration date of Petitioner's term of confinement is
now July 12, 2019.
claims that he is entitled to immediate release from
incarceration because of the circuit court's July 12,
2016, time-served sentence modification in Case No.
114107026. Foster claims the Division of Correction
(“DOC”) refuses to “suspend” this
sentence and “release” him.
reply to Respondents' answer, see ECF 9, Foster
alleges that he filed an ARP complaint on August 1, 2016.
After receiving no response, he filed an appeal to the
Commissioner of Correction on September 12, 2016. The
Commissioner returned his appeal because a response to the
complaint must be filed before noting an appeal. Foster filed
another ARP complaint on October 15, 2016 after being
transferred to the Dorsey Run Correctional Facility. He
received a response and appealed the decision on November 27,
2016 but as of December 26, 2016, Foster had not received a
response to this appeal.
federal habeas statute requires state prisoners challenging
their convictions and sentences in federal court to first
exhaust available state remedies. 28 U.S.C. § 2254(b)
and (c); see also Rules Governing Section 2254 Cases in
the United States District Courts, Rule 1(b) (applying
the rules to habeas petitions filed under 28 U.S.C. §
2241). Absent valid excuse, a state prisoner seeking federal
habeas corpus relief must first present each of his claims to
the state court with jurisdiction to consider them. Gray
v. Netherland, 518 U.S. 152, 161-65 (1996); Coleman
v. Thompson, 501 U.S. 722, 731-32 (1991). For a state
prisoner to satisfy the exhaustion requirement, he or she
must “fairly present” the “claim in each
appropriate state court . . . .” Baldwin v.
Reese, 541 U.S. 27, 29 (2004); see Gray, 518
U.S. at 162-63; Duncan v. Henry, 513 U.S. 364,
364-66 (1995) (per curiam); Satcher v. Pruett, 126
F.3d 561, 573 (4th Cir. 1997).
as here, a prisoner challenges the DOC's calculation of
his sentence, the prisoner maintains two possible avenues for
relief in the state courts. First, regardless of whether he
believes he is entitled to an immediate release, a prisoner
may challenge the calculation of his sentences and or
diminution credits through administrative proceedings by
first filing a request under the administrative remedy
procedure, Division of Correction Directive 185-001 et
seq., to the warden of the institution where he is
confined. If the request is denied, the prisoner must appeal
a denial of the request by the warden to the Commissioner. If
unsuccessful, the prisoner must next file a complaint with
the Inmate Grievance Office, (“IGO”). If that is
denied, the prisoner must appeal a final decision of the IGO
to the Circuit Court, and if necessary, file an application
for leave to appeal to the Court of Special Appeals of
Maryland from the decision of the Circuit Court. If the Court
of Special Appeals grants the application for leave to appeal
but denies relief on the merits, the prisoner must also seek
permission to appeal to the Court of Appeals of Maryland.
inmate claiming an entitlement to an immediate release
alternatively may seek relief bypassing the above-described
administrative remedies and proceeding directly to the state
courts by filing a petition for writ of habeas corpus in a
Circuit Court. If unsuccessful, the prisoner may appeal the
Circuit Court decision to the Court of Special Appeals and
thereafter may seek permission for further review from the
Court of Appeals. Following exhaustion of these state court
remedies under either avenue, the prisoner may seek habeas
corpus relief for constitutional claims in federal court
pursuant to 28 U.S.C. § 2241, using forms available from
the Clerk of Court.
alleges that he has attempted to seek relief through the
administrative process by filing an ARP complaint on two
separate occasions. He claims his efforts have been blocked,
however, because his complaints and appeals have been
ignored. See Moore v. Bennette, 517 F.3d 717, 725
(4th Cir. 2008) (“[A]n administrative remedy is not
considered to have been available if a prisoner, through no
fault of his own, was prevented from availing himself of
it.”). But even if this were the case, Foster offers no
evidence that he has also exhausted his judicial remedies by
filing a habeas corpus request in state court. See Baker
v. Corcoran, 220 F.3d 276, 289 (4th Cir. 2000) (both the
operative facts and controlling legal principles of the claim
must be presented in the state courts); Caldwell v.
Maryland, No. GLR-14-1924, 2014 WL 7185297, at *1 (D.
Md. Dec. 15, 2014) ...