United States District Court, D. Maryland
XINIS, UNITED STATES DISTRICT JUDGE
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.
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.
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
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.
was found guilty of several rule violations at the
disciplinary hearing. ECF No. 1-1 at 3. Among other
sanctions, Petitioner's 1930 diminution
credits 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.
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.
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.
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.
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.
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 ...