Buckner v. Bishop et al

Filing 21

MEMORANDUM filed. Signed by Judge Catherine C. Blake on 8/21/2013. (c/m 8/22/2013)(ko, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF MARYLAND
DORIAN BUCKNER

:

v

:

FRANK BISHOP, et al.

Civil Action No. CCB-13-214

:
. . . . . . o0o . . . . . .
MEMORANDUM

Petitioner Dorian Buckner filed the above-captioned petition for writ of habeas corpus
under 28 U.S.C. § 2241. In January of 2010, petitioner returned to the Division of Correction
(“DOC”), following commitment to the custody of the Department of Health and Mental
Hygiene (“DHMH”), where he received substance abuse treatment. Petitioner complains that he
was issued a new DOC identification number which adversely impacted his security level
classification and sentence computation. He alleges he is entitled to credit against his sentence
for time spent in substance abuse treatment and challenges his security level classification. ECF
No. 1. This relief has subsequently been granted. ECF No. 13, Exs. 2 & 3.
A chronology of petitioner’s present custody informs this case. On November 21, 2007, a
ten year sentence, commencing June 15, 2006, was imposed by the Circuit Court for Prince
George’s County following petitioner’s conviction for distribution of CDS. ECF No. 13, Ex. 1.
Petitioner’s maximum expiration date for this sentence is June 15, 2016. See Md. Code Ann.,
Corr. Servs., § 3-701(1) and COMAR 12.02.06.01(B)(12).
On June 19, 2009, petitioner was released from confinement in the DOC and committed
to the custody of the DHMH to receive substance abuse treatment. Id., Ex. 2. He returned to
DOC custody on October 2, 2009, and was assigned a new inmate identification number.
Subsequently, he received credit toward his sentence for the 105 days he underwent substance

abuse treatment. Id., Ex. 2.
Under Maryland law an inmate serving a term of confinement in the DOC may earn
diminution of confinement credits. Upon earning sufficient diminution of confinement credits an
inmate serving a term of confinement over 18 months is released from confinement on
mandatory supervision. See Md. Code Ann., Corr. Servs., §§ 3-701—711 and § 7-501(a).
As of the date of filing of Respondent’s Answer, Petitioner had been awarded a net total
of 795 diminution credits from the June 15, 2016 maximum expiration date, yielding a
mandatory supervision release date of April 12, 2014. Id., Ex. 3.
Before a petitioner may seek habeas relief in federal court, he or she must exhaust each
claim presented to the federal court through remedies available in state court. See Rose v. Lundy,
455 U.S. 509, 518 (1982); see also Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S.
484, 490-91 (1973). A prisoner challenging the calculation of his release date has two possible
avenues for relief in Maryland’s state courts; by way of administrative proceeding and, in certain
instances, by way of petition to the state courts.
Regardless of whether he believes he is entitled to an immediate release, a prisoner may
challenge the calculation of his sentences and/or diminution credits through administrative
proceedings by:
1.
2.
3.
4.

Filing a complaint with the Inmate Grievance Office, (“IGO”);
Appealing a final decision of the IGO to the Circuit Court;
Filing an application for leave to appeal to the Court of Special Appeals from the
decision of the Circuit Court; and
If the Court of Special Appeals grants the application for leave to appeal, but
denies relief on the merits, seeking certiorari to the Court of Appeals.

A prisoner claiming an entitlement to an immediate release can also seek relief directly from
the state courts by:
1.

Filing a petition for writ of habeas corpus in a Circuit Court;

2.
3.

Appealing a decision by the Circuit Court to the Court of Special Appeals; and
Seeking certiorari to the Court of Appeals from a decision by the Court of
Special Appeals.

Respondents maintain that petitioner has not completed either of these procedures. ECF
Nos. 1 & 13. While petitioner has filed Administrative Remedy Complaints (“ARPs”) regarding
his claims within the DOC and filed a Motion to Correct Illegal Sentence in the Circuit Court
concerning credit for the time spent in the substance abuse program (ECF No. 1, Exs. 4 & 6), he
has failed to complete the administrative process noted above. Petitioner maintains that he has
been unable to do so because he is unable to afford the partial filing fee assessed by the Circuit
Court for Allegany County required before appeal of the IGO decision can proceed. ECF No. 17.
Even if petitioner had exhausted his available remedies, he would not be entitled to relief,
as an alleged error of state law is not a basis for federal habeas corpus relief. Estelle v. McGuire,
502 U.S. 62, 67-68 (1991) (“It is not the province of a federal habeas court to reexamine state
court determinations on state law questions.”) Rather, a federal court exercising habeas corpus
jurisdiction is limited to deciding whether a prisoner’s custody is in violation of the Constitution
or laws of the United States. 28 U.S.C. § 2241; Rose v. Hodges, 423 U.S. 19, 21 (1975). The
record evidence demonstrates that although petitioner was assigned a new DOC inmate number,
he has been granted all credit toward his sentence which he is due under either number, is
lawfully in custody, and is not entitled to habeas relief for any violation of federal law or the
Constitution.
While DOC policy indicates that an inmate should serve under the same DOC number
when returned to the DOC after a stayed sentence, to the extent that written directives were not
followed to the letter, the adoption of procedural guidelines does not give rise to a liberty
interest; thus, the failure to follow regulations does not, in and of itself, result in a violation of

due process. See Culbert v. Young, 834 F.2d 624, 628 (7th Cir. 1987). Regardless of any alleged
violations of internal regulations, the law is settled that the failure to follow a prison directive or
regulation does not give rise to a federal claim, if constitutional minima are met. See Myers v.
Kelvenhagen, 97 F.3d 91, 94 (5th Cir. 1996).
Moreover, petitioner’s claim regarding his security classification is unavailing. It is well
established that prisoners do not have a constitutional right to access programs or to demand to
be housed in one prison rather than another absent a showing of significant hardship. “[G]iven a
valid conviction, the criminal defendant has been constitutionally deprived of his liberty to the
extent that the State may confine him and subject him to the rules of its prison system so long as
the conditions of confinement do not otherwise violate the Constitution.” Meachum v. Fano, 427
U.S. 215, 224 (1976). Petitioner does not have a right to be housed in a particular prison or
participate in a particular program, and the allegation that he should be assigned to pre-release or
work status must be dismissed.
Pursuant to 28 U.S.C. § 2253(c)(1)(A), unless a circuit justice or judge issues a certificate
of appealability, an appeal may not be taken to the court of appeals from a final order in a habeas
corpus proceeding in which the detention complained of arises out of process issued by a state
court or the final order in a proceeding under § 2255. See Montez v. McKinna, 208 F.3d 862, 869
(10th Cir. 2000) (holding that § 2253(c)(1)(A)'s requirements apply when a state habeas
petitioner is proceeding under § 2241). Because petitioner has not made a “substantial showing
of the denial of a constitutional right,” the court denies to issue a certificate of appealability. 28
U.S.C. § 2253(c)(2) (providing that a COA “may issue ... only if the applicant has made a
substantial showing of the denial of a constitutional right”).
Accordingly, a separate Order will be entered dismissing this action.

8/21/13
Date

/s/
Catherine C. Blake
United States District Judge