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Short v. Graham

United States District Court, D. Maryland

November 27, 2017




         On July 5, 2017, Petitioner Kevin Irwin Short filed a 28 U.S.C. § 2241 petition regarding the revocation of his diminution credits following a prison disciplinary hearing. ECF No. 1. Respondents have submitted a response, ECF No. 4, and Petitioner has filed a reply and accompanying affidavit, ECF Nos. 7, 8. Accordingly, the matter is now ripe for this court's consideration. After review of these filings, the court finds no need for an evidentiary hearing. See Rule 8(a), Rules Governing Section 2254 Cases in the United States District Courts and Local Rule 105.6. For the reasons set forth herein, the court shall DENY and DISMISS the Petition with prejudice.


         In February 2001, Petitioner was sentenced to 25 years' imprisonment with 7 years suspended for carjacking. ECF No. 1-1 at 35. In June 2001, Petitioner was sentenced to life imprisonment with all but 30 years suspended for first degree rape. ECF No. 1-1 at 37. These sentences were ordered to run concurrently. ECF No. 1-1 at 37.

         In August 2005, Petitioner was incarcerated at the Maryland Correctional Institution- Jessup (MCI-J). ECF No. 1 at 4. On August 5, 2005, Petitioner attacked a prison guard and stabbed another inmate multiple times. ECF No. 1-1 at 1. On August 7, 2005, Petitioner was served with a “Notice of Inmate Rule Violation and Disciplinary Hearing, ” summarizing the attack and identifying which institutional rules Petitioner was charged with violating. ECF No. 1-1 at 1 (capitalization altered). On August 8, 2005, Petitioner was transferred from MCI-J to the Maryland Correctional Adjustment Center (MCAC). ECF No. 1 at 6. Petitioner was not given advance notice of or an opportunity to argue against this transfer. ECF No. 1 at 9-10. While awaiting his disciplinary hearing at MCAC, Petitioner was placed in administrative segregation; he received no advance notice of or opportunity to be heard about this placement. ECF No. 1 at 10-11.

         Petitioner's disciplinary hearing was originally scheduled for August 12, 2005, but this hearing was delayed. ECF No. 1-1 at 3. On August 22, 2005, Hearing Officer Ashby (“Ashby”) dismissed several unrelated disciplinary charges against Petitioner because Petitioner did not receive a disciplinary hearing within the time specified by departmental directives and no explanation for the delay was provided. ECF No. 1 at 6, 13-14; ECF No. 1-1 at 4-5. On August 24, 2005, Ashby conducted Petitioner's disciplinary hearing concerning the charges arising out of the August 5 incident. ECF No. 1-1 at 6-7. Petitioner claims that at the hearing he argued that the charges should be dismissed because the hearing was not timely conducted and no exceptional circumstances justified the delay. ECF No. 1 at 14. Ashby waived the time requirement, apparently stating that his son was murdered by gang members and that he was not going to allow “gangbangers [like Petitioner] to get away with this” rule violation. ECF No. 1 at 7, 14.

         Petitioner was found guilty of several rule violations at the disciplinary hearing. ECF No. 1-1 at 3.[1] Among other sanctions, Petitioner's 1930 diminution credits[2] were revoked. ECF No. 1-1 at 3. Subsequently, Petitioner was criminally charged with assaulting a corrections officer, a charge stemming from the August 5 incident. He was convicted and sentenced to five years' imprisonment, consecutive to his underlying terms of imprisonment. ECF No. 1-1 at 33.

         Petitioner alleged that he filed an administrative grievance concerning the disciplinary hearing and revocation of diminution credits and that the grievance was “found meritorious in part by the Asst. Warden Crowder who said upon release from [MCAC] petitioner would receive credits. Petitioner appealed that d[e]cision to [the Inmate Grievance Office (“IGO”)] and IGO refused to make the Asst. Warden give petitioner['s] credits back.” Short v. Shearin, RWT-13-3874, ECF No. 1 at 6 (capitalization altered). In August 2013, Petitioner sought judicial review of the IGO decision in the Circuit Court for Alleghany County. Short, RWT-13-3874, ECF No. 6-7.

         In December 2013, Petitioner filed a 28 U.S.C. § 2241 Petition with this court, arguing that his diminution credits had been unconstitutionally revoked. Short, RWT-13-3874, ECF No. 1. Noting that the appeal of the IGO decision was still pending in Alleghany County when Petitioner filed his § 2241 Petition, the court dismissed the Petition without prejudice based on Petitioner's failure to exhaust. Short, RWT-13-3874, ECF No. 10 at 3-5.

         In April 2014, the Alleghany Circuit Court affirmed the IGO decision. ECF No. 7 at 5. In December 2014, Petitioner filed a habeas corpus petition, which reiterated his claims regarding the disciplinary hearing and diminution credits, in the Circuit Court for Alleghany County. The court denied the petition on July 14, 2016. ECF No. 1-1 at 11-12. On August 18, 2016, Petitioner mailed his Application for Leave to Appeal to the Court of Special Appeals; it appears that the court received the Application on September 2, 2016. ECF No. 1-1 at 13-24, 27. On October 25, 2016, the Court of Special Appeals denied the Application as untimely filed. ECF No. 1-1 at 27. Petitioner then filed a Motion for Reconsideration that the court denied as untimely on December 9, 2016. ECF No. 1-1 at 28. On December 20, 2016, Petitioner mailed a Petition for Writ of Certiorari to the Maryland Court of Appeals. ECF No. 1-1 at 30. In May 2017, Petitioner contacted the Court of Appeals to inquire about the status of his case, and learned that the Court had never received his Petition. ECF No. 1-1 at 30-31.


         On June 28, 2017, Petitioner filed this § 2241 Petition, in which he raises the following grounds for habeas corpus relief: (1) “MCI-J prison officials violated petitioner's procedural due process rights by transferring petitioner to Md. Supermax facility (MCAC), without any notice of transfer (written or verbal) and no opp[o]rtunity to challenge his transfer, ” ECF No. 1 at 8; (2) after arriving at MCAC, “[p]etitioner was placed on administrative segregation without notice of Assignment to Administrative Segregation . . . for (17) days after placement in confinement, [with] no opp[o]rtunity to present his views to the decision maker, and received no review by case management specified in statute;” id. at 11; (3) “MCAC'S Hearing Officer failed to comply with Due process and state laws before revoking good conduct credits, ” id. at 12; and (4) “The substantive and procedural provisions of [Departmental Directives 105-4 [and] 105-5 . . . [which were used] to revoke previously Earned credits at that time was invalid, in part because they had not been adopted in conformance with the ‘APA, '” id. at 16.


         The petition involves questions of State law and is therefore subject to the exhaustion requirement of 28 U.S.C. § 2254(b). The exhaustion requirement applies to petitions filed pursuant to 28 U.S.C. § 2241. 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). Thus, before filing a federal habeas petition, petitioner 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), cert. denied, 121 S.Ct. 1194 (2001). Exhaustion includes appellate review in the Maryland Court of Special Appeals and the Maryland Court of Appeals. S ...

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