Harding v. Blumberg, Civil Action No. ELH-13-287

• Decision Date: 21 January 2015
• Docket Number: Civil Action No. ELH-13-287
• Parties: JAY R. HARDING, SR., #239980 Petitioner v. DAVID BLUMBERG, Parole Commission Chairman, et al. Respondents
• Court: U.S. District Court — District of Maryland

JAY R. HARDING, SR., #239980Petitioner v. DAVID BLUMBERG, Parole CommissionChairman, et al. Respondents

Civil Action No. ELH-13-287

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

January 21, 2015

MEMORANDUM

Pending is a hybrid petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 and civil rights complaint filed by Jay Harding, Sr., in which he claims that he was denied a parole hearing in violation of his right to due process.ECF 1.Because Harding seeks release, damages for medical and emotional suffering, and damages for violations of his right to due process, the petition encompasses elements of a hybrid habeas corpus and prisoner civil rights action.SeeWilkerson v. Dotson, 544 U.S. 74, 81(2005)(recognizing habeas corpus remedies do not displace actions under 42 U.S.C. § 1983 where prevailing in the civil rights suit would not necessarily invalidate the legality of the state confinement);Muhammad v. Close, 540 U.S. 749, 751(2004).

Respondents, David Blumberg, Yolanda Bethea, Laurie Meredith, Kerri Margroff, and the Department of Public Safety and Correctional Services("DPSCS"), by their counsel, filed an answer requesting dismissal of the petition for failure to exhaust remedies or, alternatively, requesting denial of the petition because Harding does not have a constitutionally protected liberty interest in parole consideration.ECF 11, 12.The court deems a hearing unnecessary.See Local Rule 105.6(Md. 2011).For reasons to follow, the petition will be denied and dismissed.

BACKGROUND

On March 6, 2012, the Honorable James L. Sherbin of the Circuit Court for Garrett County found Harding in violation of the terms of a previously imposed probation, and sentenced him to eighteen months of incarceration, beginning on February 14, 2012, for contributing to the condition of a child, a violation of Md. Code, Courts and Judicial Proceedings Article, § 3-8A-30.ECF 11-1.Harding became eligible for parole in July 2012, after serving one-fourth, or four and a half months, of his eighteen-month term.Md. Code, Correctional Services Article("CS"), § 7-301(a).

Harding filed this petition on January 28, 2013, during the time he was an inmate at the Garrett County Detention Center.Harding claimed that he was "due a parole hearing by June 2012," but a hearing was not held despite his many inquiries and assurances a hearing would be scheduled.ECF 1at 4.¹Harding avers that he"received a letter" on January 23, 2013, from Ms. Bethea and Ms. Meredith, "stating that inmates are not entitled to a parole hearing" but he would be scheduled for one on the "next date."Id.However, he alleges that on January 24, 2013, the Parole Commission held a hearing at the jail, but his "name was not on their list."Id.Harding also states: "I am told I will not receive any advance notice so I can review the facts of my case nor will I receive the date, time, or place of a hearing as the law provides."Id.But, he does not aver that he was denied adequate notice of his hearing, which was held on February 13, 2013.

In addition, Harding states that he has Hepatitis C and claims that dealing with the uncertainty of his release placed an "overbearing" emotional toll on him, amounting to cruel and unusual punishment.ECF 1at 4.He also claims that he has gone without medication, but does not identify the medication or allege to have suffered any injury.Id.

A Parole Commission hearing officer considered Harding for parole on February 8, 2013, and recommended approving him for parole.ECF 11-2.A parole commissioner adopted the recommendation on February 11, 2013.Id.On February 26, 2013, the Parole Commission issued an order to release Harding on parole, and he was released the same day.ECF 12-1, 12-4.

By Order dated February 28, 2013(ECF 3), this court directed counsel for DPSCS to respond to the petition.Two days earlier, on February 26, 2013, Harding had been released from the Garrett County Detention Center.SeeECF 12-1.

On January 23, 2013, prior to Harding's release on parole, Harding filed a petition for a writ of mandamus in the Circuit Court for Garrett County against Sheriff Robert Corley and David Blumberg, Chairman of the Maryland Parole Commission, to compel consideration for parole.ECF 11-5; 11-6.On February 19, 2013, the circuit court dismissed the petition.ECF 11-7.On February 28, 2013, unaware that the petition had already been dismissed, Blumberg moved to dismiss the petition as moot because Harding had been granted parole.ECF 11-8.In an order docketed on March 12, 2013, the circuit court granted Chairman Blumberg's motion to dismiss.ECF 11-5, ECF 11-9.Harding did not appeal the dismissal of his mandamus petition to the Maryland Court of Special Appeals.ECF 11-5.

Following Harding's release, Harding failed to notify this court of his new address.On April 8, 2013, respondents moved to dismiss the petition, or in the alternative, to extend the timefor filing a response.ECF 5.By Order dated April 19, 2013, this court granted respondents' motion to dismiss, without prejudice, based on Harding's failure to comply with Local Rule 102.1.iii.²

Harding subsequently provided his current address to the court, in correspondence filed on May 1, 2013, explaining that he had provided his address to the DPSCS. ECF 9.By Order dated May 8, 2013(ECF 10), the court treated the correspondence as a motion for reconsideration, granted the motion, and directed respondents to respond.

DISCUSSION

I.Exhaustion of Remedies

Pursuant to the exhaustion requirement codified in 28 U.S.C. § 2254(b) and (c), and absent a valid excuse, a state prisoner seeking federal habeas corpus relief must initially present each of his claims to the state court with jurisdiction to consider them.Gray v. Netherland, 518 U.S. 152, 161-65(1996);Coleman v. Thompson, 501 U.S. 722, 731-32(1991).In order for a state prisoner to satisfy the exhaustion requirement, he or she must "fairly present" the "claim in each appropriate state court...."Baldwin v. Reese, 541 U.S. 27, 29(2004);seeGray, 518 U.S. at 162-63;Duncan v. Henry, 513 U.S. 364, 364-66(1995)(per curiam);Satcher v. Pruett, 126 F.3d 561, 573(4th Cir.), cert. denied, 522 U.S. 1010(1997).

If a federal habeas petition presents both exhausted and unexhausted claims and statecourt review is available, the petition must be dismissed in its entirety unless the state, through counsel, expressly waives the exhaustion requirement.SeeRose v. Lundy, 455 U.S. 509, 522(1982);28 U.S.C. § 2254(b).And, "[w]here questions concerning exhaustion arise, the petitioner bears the burden of demonstrating that state remedies have, in fact, been exhausted."Mallory v. Smith, 27 F.3d 991, 994(4th Cir.), cert. denied, 513 U.S. 1047(1994).

Respondents assert that because Harding did not seek appellate review of the Maryland circuit court's dismissal of his petition for mandamus, he has failed to exhaust administrative remedies, as required under 28 U.S.C. § 2254(b).SeeFrancis 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 alsoTimms v. Johns, 627 F.3d 525, 531(4th Cir.2010)(applying exhaustion requirements to 2241 petition challenging civil commitment).

Because Harding did not appeal the denial of his petition for writ of mandamus, his claim that the Parole Commission failed to provide a timely hearing on his petition is subject to dismissal for failure to exhaust administrative remedies.To be sure, if Harding were to attempt to file an appeal of the circuit court's decision to the Maryland Court of Special Appeals at this date, his appeal would be dismissed as untimely under Maryland Rule 8-202(a)(appeal must be filed within thirty days after entry of judgment), and the instant petition would be subject to dismissal as procedurally defaulted.Mackall v. Angelone, 131 F.3d 442, 449-50(4th Cir.1997)(en banc)(deeming procedurally defaulted a claim that was not presented to state appellate court, where presentation of claim in state court would now be fruitless);Buchanan v. Angelone, 103 F.3d 344, 351(4th Cir.1996)("Failure to raise a federal claim in state court bars federal reviewof the omitted claim."), aff'd., 522 U.S. 269(1998).Consequently, this petition is subject to dismissal for failure to exhaust administrative remedies.

In any event, and alternatively, by virtue of Harding's hearing and release from custody, Harding's request for injunctive relief is moot.SeeSpencer v. Kenna, 523 U.S. 1, 7(1998).

II.Due Process

Alternatively, respondents urge dismissal of the petition because Harding had no liberty interest in parole until after he was served with and signed his Order for Release on Parole.Thus, respondents' actions prior to that date could not have violated his right to due process as a matter of law.

In considering an application for habeas relief under 28 U.S.C. § 2241, the court must consider whether the inmate is "in custody in violation of the Constitution or laws or treaties of the United States."28 U.S.C. § 2241(c)(3);Rose v. Hodges, 423 U.S. 19, 21(1975).Although the Fifth Amendment to the United States Constitution prohibits the federal government from depriving any person of "life, liberty, or property, without due process of law," the range of protected liberty interests for defendants convicted and confined in prison are significantly reduced for their period of incarceration.SeeU.S. Const. Amend. XIV, § 1;Gaston v. Taylor, 946 F.2d 340, 343(4th Cir.1991).The fact of conviction implies an inmate's transfer of his liberty to prison officials who, in their broad discretion, administer his sentence.Gaston, 946 F.2d at 343.Nevertheless, "confinement to prison does not strip a prisoner of all liberty...