United States District Court, D. Maryland
L. Russell, III United States District Judge
MATTER is before the Court on Defendant Kenya Moore's
Supplemental Motion to Dismiss (ECF No. 22). The Motion is
ripe for disposition, and no hearing is necessary.
See Local Rule 105.6 (D.Md. 2016). For the reasons
discussed below, the Court will grant Moore's Motion.
August 3, 2017, Plaintiff Dana Carlton Rich filed a Complaint
challenging the calculation of his term of confinement and
seeking damages and his release. (Compl. at 4-6, ECF No.
Rich, who is self-represented, also raises claims for federal
habeas relief. (Mot. Writ Habeas Corpus ¶ 1, ECF No.
December 18, 2017, Moore filed a Motion to Dismiss the
Complaint under Federal Rule of Civil Procedure 12(b)(6) and
28 U.S.C. § 2254(b). (ECF No. 14). On September 13,
2018, the Court granted Moore's Motion in part,
dismissing Rich's claims for damages under 42 U.S.C.
§1983, denying the Motion without prejudice to the
extent that Moore had moved to dismiss Rich's habeas
claims for lack of exhaustion, and directing Moore to file a
supplemental dispositive motion to clarify the exhaustion
issue. (Sept. 13, 2018 Mem. Op. at 12, ECF No. 21).
October 5, 2018, Moore filed a Supplemental Motion to
Dismiss. (ECF No. 22). Rich filed an Opposition on October
25, 2018. (ECF No. 24). To date, the Court has no record that
Moore filed a Reply.
filing a federal habeas corpus application under 28 U.S.C.
§ 2254, a petitioner must show that all of his claims
have been presented to the state courts. 28 U.S.C. §
2254(b), (c); see also Preiser v. Rodriguez, 411
U.S. 475, 491 (1973). The exhaustion requirement is satisfied
by seeking review of the claim in the highest state court
with jurisdiction to consider it. § 2254(b)(1)(A). A
petitioner “bears the burden of demonstrating that
state remedies have, in fact, been exhausted.”
Mallory v. Smith, 27 F.3d 991, 994-95 (4th Cir.
Maryland inmate challenging the calculation of his term of
confinement may pursue both administrative and judicial
remedies. An inmate may file a grievance with the Inmate
Grievance Office (“IGO”). See Md. Code
Ann., Corr. Servs. [“CS”] § 10-206(a);
see generally Adamson v. Corr. Med. Servs., Inc.,
753 A.2d 501, 508-10 (Md. 2000) (discussing Maryland's
inmate grievance procedures). If the grievance is not found
wholly lacking in merit on its face, it is referred to the
Office of Administrative Hearings (“OAH”) for a
hearing before an administrative law judge. CS §
10-207(c). An order of the OAH finding that an inmate's
complaint is lacking in merit constitutes the final decision
of the Secretary of Public Safety and Correctional Services
(“Secretary”) for purposes of judicial review. CS
§ 10-209(b). If the OAH finds that the grievance is
meritorious, an order is forwarded to the Secretary. The
Secretary may affirm, reverse, or modify the order of the
OAH. CS § 10-209(c).
inmate alleges “entitlement to immediate release and
makes a colorable claim that he has served his sentence, less
credits, ” the inmate may pursue state habeas relief
without exhausting administrative remedies. Wilson v.
Simms, 849 A.2d 88, 94 (Md.Ct.Spec.App. 2004) (citing
Md. House of Corr. v. Fields, 703 A.2d 167, 175 (Md.
1997)). The inmate may appeal a circuit court's decision
denying habeas corpus relief to the Maryland Court of Special
Appeals, and may thereafter seek certiorari in the Maryland
Court of Appeals. See generally Stouffer v. Pearson,
887 A.2d 623, 625-26 (Md. 2005) (discussing procedural
background of state habeas case from its initial filing in
the circuit court to the Maryland Court of Appeals granting a
petition for writ of certiorari).
December 18, 2017 Motion to Dismiss, Moore argued that Rich
failed to exhaust available state remedies. The record before
the Court, however, was unclear. Moore indicated that Rich
had filed a petition for writ of habeas corpus in the Circuit
Court for Washington County, Maryland on October 26, 2017,
and that the State had filed its Response on December 18,
2017. (Def.'s Mot. Dismiss Ex. 1, ECF No. 14-2). The
Maryland Judiciary Case Search electronic docket showed,
however, that on January 18, 2018, the same day Moore filed
the Motion to Dismiss, the Circuit Court had denied
Rich's petition for writ of habeas corpus. Maryland
Judiciary Case Search did not indicate whether Rich had noted
a timely appeal of the decision denying his petition.
review of the Supplemental Motion to Dismiss and Rich's
Opposition, the Court finds that Rich's habeas claims are
unexhausted. On December 21, 2017 and January 18, 2018, the
Circuit Court denied Rich's state petition for writ of
habeas corpus. (Suppl. Mot. Dismiss Ex. 1, ECF No. 22-2).
Rich did not appeal the denials of habeas corpus relief to
the Court of Special Appeals. (Id.). Thus, Rich has
not exhausted his habeas claims before the state courts.
in his Opposition, Rich asks to be excused from the
exhaustion requirement. He avers that he will serve his
day-to day sentence before he can exhaust his judicial
remedies. He argues that if his earned diminution credits
were restored, then he would be entitled to immediate
release. The Court is not persuaded.
petitioner may be excused from the exhaustion requirement if
“there is an absence of available state corrective
process” or “circumstances exist that render such
process ineffective to protect the rights of the
[petitioner].” 28 U.S.C. § 2254(b)(1)(B). State
remedies may become ineffective by inordinate delay or
inaction in ...