United States District Court, D. Maryland
TAVON ELLIS, Prisoner Identification No. 437-263, Petitioner,
THEODORE D. CHUANG United States District Judge.
Ellis, formerly confined at the Eastern Correctional
Institution ("ECI") in Westover, Maryland, has
filed a Petition for Writ of Habeas Corpus. The Petition
alleges that he has been held beyond his prison release date
because Maryland Division of Correction ("DOC")
officials miscalculated the number of diminution credits to
which he is entitled. Because Ellis is attacking the manner
in which his sentence is executed, the Petition is deemed
filed pursuant to 28 U.S.C. S 2241(a). See Preiser v.
Rodriguez, 411 U.S. 475, 485-87 (1973). Ellis also filed
a Motion for Leave to Proceed in Forma Pauperis, ECF
No.3, which is denied as moot because he has paid the $5.00
7, 2014, Ellis was charged in the Circuit Court for Baltimore
City, Maryland with unlawful possession of a controlled
dangerous substance, possession of drug paraphernalia,
carrying a concealed deadly weapon, and carrying a deadly
weapon with intent to injure. See State v. Ellis,
Case No. 814190014,
http.//casesearch.courts.state.md.us/. He was
convicted of the concealed weapon charge and, on July 31,
2014, was sentenced to three years of imprisonment, all
suspended with the exception of the time spent in detention
while awaiting trial. Ellis was placed on probation and
released. On April 21, 2015, Ellis was convicted of violating
probation and sentenced to serve the remainder of his
suspended sentence, amounting to two years, ten months, and
Petition to this Court, Ellis challenges the length of his
incarceration. He asserts that DOC officials have applied
"time off of the top, " presumably, good conduct
diminution credits, as if he were serving a three year
sentence, rather than the lesser suspended sentence of two
years, ten months, and seven days. Suppl. Pet. at 5-7, ECF
NO.2. As a result, he argues that he should have been
released either on September 23, 2016 or, at the latest,
December 13, 2016.
Petition is now moot. "The inability of the federal
judiciary 'to review moot cases derives from the
requirement of Art[ic1e] III of the Constitution under which
the exercise of judicial power depends upon the existence of
a case or controversy.'" DeFunis v.
Odegaard, 416 U.S. 312, 316 (1974) (alteration added)
(quoting Liner v. Jafco, Inc., 375 U.S. 301, 306 n.3
(1964)). "[A] case is moot when the issues presented are
no longer 'live' or the parties lack a legally
cognizable interest in the outcome." Powell v.
McCormack, 395 U.S. 486, 496 (1969). "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 v. Kemna, 523
U.S. 1, 7 (1998) (quoting Lewis v. Cont'l Bank Corp.,
494 U.S. 472, 477 (1990)). Where a convicts
incarceration has ended, "some concrete and continuing
injury other than the now-ended incarceration or parole-some
'collateral consequence' of the conviction-must exist
if the suit is to be maintained." Id. (finding
a challenge to the termination of parole status moot when the
period of reincarceration ended); see also Townes v.
Jarvis, 577 F.3d 543, 547 (4th Cir. 2009) (finding that
the action was not moot where the formerly-incarcerated
petitioner, who was challenging his parole ineligibility
determination, demonstrated that the
"parole-ineligibility finding continues to result in
collateral consequences with respect to the duration of his
parole and probation"; Nakell v. Attorney Gen. of
North Carolina, 15 F.3d 319, 322-23 (4th Cir. 1994)
(identifying collateral consequences that prevent mootness).
Ellis stated that he was scheduled for release on Monday,
January 9, 2017. DOC records confirm that he has been
released. Ellis does not challenge the underlying conviction,
his sentence is completed, and there is no presumption or
demonstration of collateral consequence.. The instant action,
therefore, is dismissed as moot. See Bowler v.
Ashcroft, 46 F.App'x 731, at *1 (5th Cir. 2002)
(concluding that the petitioner's habeas challenge to the
United States Bureau of Prison's method of calculation of
good-time credits was moot where the petitioner had been
released from prison but was still on supervised release).
Exhaustion of Alternative Remedies
Court notes that even if this case were not moot, the
Petition, as amended, would fail because it contains no
indication that Ellis has successfully challenged the alleged
miscalculation in the Maryland courts. Absent the exhaustion
of such challenges, the Petition is subject to dismissal.
See Timms v. Johns, 627 F.3d 525, 530-31, 533 (4th
prisoner challenging the way the DOC has calculated his
sentence has two possible avenues for relief. First,
regardless of whether he believes he is entitled to immediate
release, a prisoner may challenge the calculation of his
sentence or diminution credits through administrative
proceedings by: (1) filing a request under the administrative
remedy procedure, see DOC Directive 185-001 to -004
procurement/ihs/index-DOC185tshtml, to the Warden of the
institution where he is confined; (2) appealing a denial of
the request by the Warden to the Commissioner of Correction;
(3) filing a complaint with the Inmate Grievance Office
("IGO"); (4) appealing a final decision of the IGO
to the Circuit Court; and (5) if necessary, filing an
application for leave to appeal to the Court of Special
Appeals of Maryland from the decision of the Circuit Court.
See Md. Code Ann., Corr. Servs. S 10-210 (West
2002); DOC Directive 185-002. 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. See Md.
Code Ann., Cts. & Jud. Proc. S 12-201 to -202 (West
2011); Williams v. State, 438 A.2d 1301, 1305 (Md.
1981). Although Ellis has stated that he has begun the
administrative remedy procedure process, the initial step
towards exhaustion, he does not indicate that he has
completed all steps in the process.
a prisoner claiming entitlement to immediate release can
bypass administrative remedies and seek relief by filing a
petition for writ of habeas corpus in a Circuit Court.
See Md. House of Corr. v. Fields, 703 A.2d 167, 175
(Md. 1997) ("[A]n inmate is not required to utilize the
inmate grievance procedure, and courts will entertain an
inmate's petition for habeas corpus when the plaintiff
alleges entitlement to immediate release and makes a
colorable claim that he or she has served the entire sentence
less any mandatory credits."), abrogated on other
grounds by Moats v. Scott, 751 A.2d 462 (Md. 2000);
see also Md. Rule 15-302(a)(1). If unsuccessful, the
prisoner may appeal the Circuit Court decision to the Court
of Special Appeals, see Frost v. State, 647 A.2d
106, 109 & n.5 (Md. 1994); e.g., Merritt v.
Corcoran, 658 A.2d 1153, 1154 (Md. Ct. Spec. App. 1995),
and thereafter may seek permission for further review from
the Court of Appeals, Md. Code Ann., Cts. & Jud. Proc. S
12-201. Nothing in the pleadings suggests Ellis has filed
such a petition in the state courts.