United States District Court, D. Maryland
J. HAZEL United States District Judge.
Douglas Fleming filed a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2241 challenging the Maryland
Parole Commission's failure to hold a timely revocation
hearing following a parole retake warrant served on August
28, 2015. ECF No. 1. Respondent requests that the Court deny
the petition on the basis that Fleming failed to exhaust his
claim in state court prior to instituting this case. ECF No.
4. No hearing is necessary. Loc. R. 105.6 (D. Md. 2016). For
the following reasons, Fleming's petition is denied.
a state inmate, was released on parole from the Maryland
Division of Corrections on April 10, 2009. ECF No. 4 at
The Maryland Parole Commission issued a retake warrant for
Fleming on August 28, 2015, and he was returned to custody on
September 30, 2015. Id. At the time Fleming filed
his petition, his revocation hearing was scheduled for 2015.
Id. As of the date of the filing of Respondent's
answer, Fleming had not filed any action in state court
challenging his detention on a retake warrant. Id.
who at the time of the filing of this petition awaited a
parole revocation hearing, claimed he was entitled to release
from detention because he was not provided with a revocation
hearing within 60 days of being detained on the retake
warrant. ECF No. 1. The relevant Maryland regulation provides
A parole revocation hearing shall be held within 60 days
after apprehension of the parolee on the parole violation
warrant, except that failure to hold the hearing within
the 60-day period may not be in contravention of this
paragraph if the parole violation warrant is not the sole
document under which the parolee is detained or
incarcerated. This paragraph may not serve to invalidate
the action of the Parole Commission in revoking the parole of
an individual if, under all the circumstances, the revocation
hearing is held within a reasonable time after the parolee
was apprehended and detained for violation of parole under
the parole violation warrant.
COMAR 12.08.01.22.F(2)(A) (emphasis added).
extent Fleming is seeking an order mandating the Maryland
Parole Commission to provide him with a parole revocation
hearing, the Court does not have jurisdiction to grant
mandamus relief in this instance. Under 28 U.S.C. §
1361, federal district courts have original jurisdiction of
any action in the nature of mandamus to compel an officer or
employee of the United States or one of its agencies to
perform a duty owed to a petitioner; this mandamus
jurisdiction does not apply to state employees, such as the
Maryland Parole Commission. See Gurley v. Superior Court
of Mecklenburg County, 411 F.2d 586, 587 (4th Cir.
extent he seeks an order requiring his release from
detention, the claim is a matter of state law and must first
be presented to the state court for review before federal
habeas relief may be granted. See Francis v.
Henderson, 425 U.S. 536, 538 (1976) ("This Court
has long recognized that in some circumstances considerations
of comity and concerns for the orderly administration of
criminal justice require a federal court to forgo the
exercise of its habeas corpus power."); see also
Timms v. Johns, 627 F.3d 525, 531 (4th Cir. 2010)
(applying exhaustion requirements to § 2241 petition
challenging civil commitment).
state courts are to be afforded the first opportunity to
review federal constitutional challenges to state convictions
in order to preserve the role of the state courts in
protecting federally guaranteed rights. See Preiser v.
Rodriguez, 411 U.S. 475 (1973). Thus, before filing a
federal habeas petition, Fleming must exhaust each claim
presented by pursuing remedies available in state court.
See Rose v. Lundy, 455 U.S. 509, 521 (1982). The
claim must be fairly presented to the state courts; this
means presenting both the operative facts and controlling
legal principles. See Baker v. Corcoran, 220 F.3d
276, 289 (4th Cir. 2000) (citations omitted). Exhaustion
includes appellate review in the Maryland Court of Special
Appeals and the Maryland Court of Appeals. See Granberry
v. Greer, 481 U.S. 129, 134-35 (1987). At the time of
Fleming's petition, this process had not been completed.
the Court were to have subject matter jurisdiction,
Fleming's claim does not appear to have merit. Although
Fleming asserts he was held solely for the retake warrant
issued by the Maryland Parole Commission, he was charged with
new criminal offenses before issuance of the retake
warrant. ECF No. 4 at 7. As such, it appears that
the parole retake warrant was not the sole document under
which Fleming was detained, making the 60 day hearing
requirement potentially inapplicable.
these reasons, Fleming's petition for writ of habeas
corpus, ECF No. 1, ...