United States District Court, D. Maryland
Xinis, United States District Judge
seeks dismissal of the above-captioned Petition for Writ of
Habeas Corpus, contending that Petitioner, Joseph Ellis,
failed to exhaust applicable state remedies. ECF No. 4.
Petitioner has not responded and, because no hearing is
necessary, the Court now rules.
time Ellis filed his petition, he was detained awaiting a
parole revocation hearing.
claims that he is entitled to immediate release for failure
to receive a revocation hearing within 60 days from detention
on the parole retake warrant. ECF No. 1. The pertinent
regulation provides that:
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 supplied).
extent Ellis asks this Court to order that the Maryland
Parole Commission provide him a parole revocation hearing,
this Court is without jurisdiction to grant such mandamus
relief. Pursuant to 28 U.S.C. § 1361, a federal court
maintains original jurisdiction in any mandamus action to
compel an officer or employee of the United States or one of
its agencies to perform a duty owed to a petitioner. The
Court does not have the same mandamus jurisdiction over State
employees, such as the Maryland Parole Commission. See
Gurley v. Superior Court of Mecklenburg County, 411 F.2d
586, 587 (4th Cir. 1969).
extent Ellis asks this Court to order his release from
detention, the petition concerns questions of State law
exclusively and is therefore subject to the exhaustion
requirements set forth in 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, Ellis must
pursue all available remedies in state court. See Rose v.
Lundy, 455 U.S. 509, 521 (1982). The claim must be
fairly presented to the state courts as to 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. See
Granberry v. Greer, 481 U.S. 129, 134-35 (1987). This is
because state courts must be given the first opportunity to
review federal constitutional challenges to state convictions
to preserve the role of the state courts in protecting
federally guaranteed rights. See Preiser v.
Rodriguez, 411 U.S. 475 (1973).
asserts that Ellis has not filed a state habeas corpus
petition concerning this claim. ECF No. 4-2. Ellis has not
offered any evidence or argument to the contrary. The claim
is, therefore, has not been exhausted. The petition must be
dismissed without prejudice.
addition, this court declines to issue a certificate of
appealability. See 28 U.S.C. §2253(c)(2).
“When the district court denies a habeas petition on
procedural grounds without reaching the prisoner's
underlying constitutional claim, a COA [certificate of
appealability] should issue when the prisoner shows, at
least, that . . . jurists of reason would find it debatable
whether the district court was correct in its procedural
ruling.” Slack v. McDaniel, 529 U.S. 473, 484
(2000). Ellis has provided no excuse for his failure to
exhaust his claims. A certificate of appealability,
therefore, shall not issue.
separate order follows.
 The Petition also appears to be moot
in that Ellis has received a revocation hearing during which
Ellis was found in violation of three parole conditions. The
Commissioner withheld rendering a final disposition and