Ewing v. Carter

Filing 7

MEMORANDUM OPINION. Signed by Judge Brendan Abell Hurson on 9/25/2024. (c/m 9/25/2024 ybs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

GLEN EWING, JR.,

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Petitioner,

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V.

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WARDEN CARTER,

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Respondent.

Civil Action No. BAH-22-3029

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MEMORANDUM OPINION

Glen Ewing, Jr., a federal inmate, filed a petition for writ of habeas corpus under 28 U.S.C:
§ 2241, seeking the application often months of"jail time credit" to his sentence. ECF 1. Warden
Carter filed a response and motion to dismiss the petition, or in the alternative, for summary
judgment ECF 5. Ewing has opposed the motion. ECF 6. Having reviewed the petition,
response, and related filings, the Court finds that no hearing is necessary. Rules l(b), 8, Rules
Governing Section 2254 Cases in the United States District Courts; D. Md. Local R. 105.6. For

the reasons set forth below, the Court will treat Respondent's motion to dfomiss, or in the
alternative, for summary judgment as one to dismiss and grants the motion.
I.

BACKGROUND

The Lorain County Court of Common Pleas for Ohio sentenced Ewing, on March 21, 2019,
to a twelve-month term of imprisonment for a number of drug related offenses. ECF 5-1, at 2 ~ 3
(declaration of Ronald Gandy, management analysis! at the Designation and Sentence Computing ·
Center); ECF 5-3, at 5 (Docket for Case No. 17CR096472). Ewing was ordered to surrender on
or before May 20, 2019, for service of this sentence. ECF 5-1, at 2 ~ 3; ECF 5-3, at 4. However,
on April 3, 2019, before he reported, Ewing was arrested in Lorain County, Ohio, for: (1) Violation

of Probation in Case No. 16CR093548; (2) Contempt of Court in Case No. 17CR096472; and (3)
numerous new drug trafficking and related offenses in Case No. l 7CR096680. ECF 5-1, at 3 1 5;
ECF 5-5, at 7 (Docket for Case No. 16CR093548); ECF 5-6, at 5-6 (Docket for Case No.
l 7CR096680). The violation of probation (Case No. 16CR093548) was discharged with no action;
Ewing was released on bond on April 16, 2019. ECF 5-1, at 316; ECF 5-5, at 7.
On April 24, 2019, Ewing was sentenced by the Lorain County Court of Common Pleas to
a two-year term of imprisonment in Case No. l 7CR096680, to run consecutive to Case No.
l 7CR096472, for a total term of three years of imprisonment. ECF 5-1, at 317; ECF 5-6, at 5-6.
The state court directed Ewing's sentence begin on April 24, 2019, and Ewing was granted thirty
.
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days of prior custody credit. ECF 5-1, at 317; ECF 5-6, at 5-6.
On June 5, 2019, Ewing was released to the temporary custody of the United States Marshal
Service (''USMS."). ECF 5-1, at 3-418; ECF 5-7 (USM-129 Form for Petitioner). On January
27, 2020, while still in the temporary custody of the USMS, Ewing was sentenced by the United
States District cburt for the Northern District of Ohio to a sixty-month term of imprisonment for
Distribution of Cocaine. ECF 5-1, at 419; ECF 5-8, at 3 (Judgment in Case No. 1:19CR321-001).
The federal sentence was to run concurrent with the sentences in Lorain County Court of Common
Pleas Case Nos. l 7CR096472 and l 7CR096680. ECF 5-1, at 4 19; ECF 5-8, at 3. On January
28, 2020, Ewing was returned to state custody to complete the stat~ sentence. ECF 5-1, at 4 1 1O;
ECF 5-7.
Upon co~pletion of his state sentence, Ewing was ·released to the primary custody of the
USMS on March 23, 2022. ECF 5-1, at 4 1 11; ECF 5-7; ECF 5-9 (Ohio Department of
Rehabilitation and Correction Offender Detail for Petitioner).

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Ewing's.federal sentence was computed and.marked as commencing on January 27, 2020,
the date the federal sentence was imposed. ECF 5-1, at 4

,r 12;

ECF 5-10, at 3 (Sentencing·

Monitoring Computation Data Sheet). Ewing was.awarded .prior custody .credit for April 3, 20.J 9,
through April 16, 2019. ECF 5-1, at 4 ,r 12; ECF 5-10, at 3. His projected statutory release date
was computed as April 17, 2024, with an early release date computed as October 4, 2023. ECF 51, at 4 if 12; ECF 5-10, at 3.
On May 20, 2022, Ewing .filed a form seeking the award of jail credits, arguing that since
his federal sentence was to run concurrent to his state sentence, he was entitled to credit toward
his federal sentence for the time he served in state custody before his federal sentence was impo,sed.
ECF 1-1, at 6. Ewing was advised that his sentence was reviewed and no change in the calculation
would be made as he was not entitled to the credit sought. Id. at'7. He was specifically advised
that despite his sentence running concurrently, his federal sentence could not commence until it
was imposed. Id.
Ewing did not file a formal administrative remedy regarding his claim.

ECF 5-12

(Administrative Remedy Retrieval for Petitioner). Ewing acknowledges that he did not exhaust
his available administrative remedies prior to filing his petition. ECF 6, at 4. In addition to filing
the request for informal resolution on May 20, 2022, Ewing explains that he filed a second request
for informal resolution on September 29,.2022, which was also denied. Id. Ewing then determined
that "the Bureau lacks the ability or competence to resolve the instant requesC' Id. Ewing cites
authority for waiver of t.he exhaustion requirement under certain circumstances, including
exigency and futility. Id. at 5. He states that he did not have time to file further appeals before the
_expiration of his sentence and that exhaustion would be futile because the Bureau of Prisons
("BOP") already determined he is not entitled to the relief sought. Id. at 6.

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Respondent argues that Ewing_ failed' to exhaust his administrative remedies as required
and that he has been awarded all the prior custody credit he is due. ECF 5.
Ewing was projected to be released on April 17, 2024. See ECF 5-1, at 4 ~ 12; ECF 5-10,
at 3. The undersigned consulted the BOP inmate locator and confirmed that he was released from
custody on October 25, 2023.

See 'Find an Inmate,

Federal Bureau of Prisons,

www.bop.gov/inmateloc/ (last accessed September 13, 2024). Because Ewing is now released and
on supervised probation, ECF 5-8, at 3, the Court must determine whether his petition presents a
live case or cont,roversy. Even assuming without argument that Ewing's claim for relief is not
moot, it will be dismissed due to a lack of administrative exhaustion.

II.

DISCUSSION
A. Mootness
The authority is conflicted on whether a petitioner's release from prison renders their

habeas petition for incorrect time credit calculation moot. On the one hand, the Fourth Circuit has
held that overseiving the custodial portion of a sentence cannot be remedied via, for instance, the
shortening of a ·supervised release period. Jones v. Bolster, 850 F. App'x 839, 839 (4th Cir.
2021) (per curiam) (holding petitioner's request for the restoration of his good-time credits
was "moot because any time he allegedly overserved cannot be applied to shorten his supervised
release term") (citing United States v. Jackson, 952 FJd 492,498 (4th Cir. 2020)).
On the other hand, "[q]uestions about banked time [ ] arise in the context of supervised
release." Jackson, 952 F.3d at 498. The "BOP has created extensive regulations concerning its
duty to calculate sentences, including the treatment of banked time." Id. Among other things, .
BOP's regulations provide that "[a]ny prior custody time spent in official detention after the date
of offense that was not awarded to the ·original sentence or elsewhere shall bl;) awarded to the

II
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revocation term" when a defendant is sentenced to a term of incarceration for violati~g his
supervised release. Id. (quoting BOP Program 8tatement § 5880.28, Sentence Computation
Manual-CCCA of 1984 (1999) at 1-69). Thus, a determination that the petitioner overserved time
in inc~ceration would be banked, or credited to him, only if he were to violate the conditions of
his supervised release and be sentenced to serve a term of incarceration as a penalty.
This conclusion is, however, in tension with the idea that courts are to presume petitioners
are not going to break the law or violate terms of their supervisory release. 0 'Shea v. _Littleton, 414
U.S. 488, 497 (1974) ("[W]e are ... unable to conclude that the case-or-controversy requirement
is satisfied by general assertions or inferences that in the course of their activities respondents will
be prosecuted for violating valid criminal laws. We assume that respondents will conduct their
activities within the law and so avoid prosecution and conviction."). Additionally, this conclusion
clashes with the idea that the injury must be concrete, and not merely speculative. Spencer v.
Kemna, 523 U.S.. 1,. 15 (1998) (rejecting collateral consequences
. exception's application to a

. parole violation on the basis that the parolee may commit a different crime in the future and have
less favorable parole opportunities); Ware, 2023 WL 4855308, at *3 ("Mere conjecture ... that
the prisoner may return to the first prison and again face the alleged wrong is not sufficient to meet
the mootness exception." (quoting Owens v. FCJ Beckley, Civ. No. 5:12-03620, 2013 WL
4519803, at *7 (S.D. W. Va. Aug. 27, 2013))). The Court need not address this tension in the
present case since, even assuming that Ewing's time crediting claim is not moot, it nevertheless
fails for a lack of administrative exhaustion.
B. Administrative Exhaustion

Although 28 U.S.C. § 2241 does not contain a statutory exhaustion requirement, meaning
exhaustion is not a jurisdictional prerequisite to bringing a § 2241 habeas petition, courts

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nevertheless apply a judicial exhaustion requirement "in the absence of exceptional circumstances
where the need for the remedy afforded by the writ of habeas corpus is apparent." Timms v. Johns,
627 F.3d 525, 530-31 (4th Cir. 2010) (quotations and .citation removed).

This exhaustion

requirement recognizes that "prudential concerns, such as comity and the orderly administration
of criminal justice, may require a federal court to forgo the exercise of its habeas corpus power."
Munafv. Geren, 5'53 U.S, 674,693 (2008) (citation and internal quotation marks omitted); see also
Boumediene v. Bysh, 553 U.S: 723, 793 (2008). "Failure to exhaust [prior to filing a § 2241

petition] may only be excused upon a showing of cause and prejudice." McClung v. Shearin, 90
F. App'x 444,445 (4th Cir. 2004) (citing Carmona v. United States Bureau of Prisons, 243 F.3d
629,634 (2d Cir. 2001)).
Ewing concedes he did not exhaust his administrative remedies before filing his petition.
ECF 6, at 4. He asserts, however, that the then-imminent expiration of his sentence and his belief
that the BOP had already determined his sentence was properly calculated constitute exceptional
circumstances ex~using _the lapse and that the Court should waive any exhaustion requirement. Id.
at 6. Ewing commenced the. informal administrative remedy process in May 2022-two months
after being trans(erred to federal custody-and filed a second attempt at informal resolution on
September 29, 2022. ECF 1-1, at 6; ECF 6-1, at 2. His computation review request was denied. 1
ECF 1-1, at 7; ECF 6-1, at 3. While Ewing argues he did not need to pursue his administrative
remedies further after the denial because he believed such an effort would not -be successful and
because he would be released before resolution of the administrative remedy process, ECF 6, at 6, .
such circumstances are not sufficient to warrant waiver of the exhaustion requirement. What's

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The date of the denial letter appears to be June 2, 2022. See ECF 1-1, at 6-7. It is not clear
whether Petitiotjer received a response to the September 29, 2022 informal resolution request prior
to filing the instant petition on November 21, 2022.
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more, Ewing does not put forth any allegations explaining the delay in filing -the instant petition
after his initial request was denied.
This Court has previously found that "[u]nless the agency is certain to rule adversely, ...
a petitioner's unsupported prediction of failure does not excuse his lack of administrative
exhaustion."2 Wright v. Warden, FCI-Cumberland, Civ. No. RDB-10-671, 2010 WL 1258181, at
* 1 (D. Md. Mar. 24, 2010) (citing Thetford Prop. IV Ltd P'ship v. U.S. Dep 't of Haus. & Urban

Dev., 907 F.2d 445,450 (4th Cir. 1990)). Further, under the regulations, the entire administrative
exhaustion_process takes about four months. See id. at *2 n.4 (citing 28 C.F.R. § 542.14 to 542.15;

Larue v. Adams, 2006 WL 1674487, at *9 (S.D. W. Va. June 12, 2006)). Thus, had Ewing pursued
the administrative process after his initial informal review request was denied, based on response
deadlines prescribed by regulation, the administrative review process would have been resolved
before his projected release date. See id; see also ; Larue v. Adams, 2006 WL 1674487, at *9
n.1 I.
While the Fourth Circuit has not addressed exhaustion under these circumstances, courts
in other circuits have found that the exhaustion requirement i,s not exc_used because of a petitioner's
impending release from custody when a petitioner's own lack of timeliness contributed to the time
constraint. See Overshown v. Upton, 466 F. App'x 361, 361 (5th Cir. 2012) (affirming the district
court's dismissal for failure to exhaust and finding .that a petitioner challenging the BOP's
calculation of credit towards his· federal sentence of time spent in state custody had not shown
futility and prejudice to warrant excusing the exhaustion requirement); Richmond v. Scibana, 387

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An adverse ruling is "certain" upon a "a clear showing that an administrative agency has taken a
hard and fast position." Thetford Properties IV Ltd. P'ship v. U.S. Dep't of Haus. & Urb. Dev.,
907 F.2d 445,450 (4th Cir. 1990). Otherwise, "a litigant's prognostication that he is likely to fail
before an agency is not a sufficient reason to excuse the lack of exhaustion." Id Ewing has not
shown that an adverse ruling was certain here.
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F.3d 602, 604 (7th Cir. 2004) (stating "[a] prisoner cannot manufacture exigency by tarrying," in
response to a petitioner's contention that "[l]ooming deadlines dates excuse[d] exhaustion'_' in a
habeas petition); Moscato~- Fed. Bureau ofPrisons, 98 F.3d 757, 760-62 (3d Cir. 1996) (finding
a procedural default that precluded review of§ 2241 claims where a petitioner failed to complete
the administrative remedy process due to the petitioner's own "dilatoriness"; finding no cause and
prejudice that w_ould excuse default); see also Sutton v. Moser, No. 2:19-CV-210, 2019 ·WL
2743959, at *3-4 (W.D. Pa. July 1, 2019) (finding a petitioner is not excused from exhaustion
"simply because he is approaching his projected release date and may not finish his administrative
appeal before a potential habeas claim would become moot"); Allah v. Rechtenwald, Civ. No. 15267, 2016 WL 6081524, at *3 (W.D. Pa. Aug. 19, 2016) (recommending rejection ofan argument
that "the exhaustion requirement [ ] be excused because the administrative remedy process could
not be completed prior to" a certain date), report and recommendation adopted, No. 1:15-CV00267-BR-SPB, 2016 WL 6080363 (W.D. Pa. Oct. 17, 2016); Amirnazmi v. Scism, No. 3:1 J-CV273, 201 I WL 5854579, at *3, *7 (M.D. Pa. Nov. 21,2011) (adopting Magistrate Judge's finding
that "exhaustion is not rendered futile simply because an inmate grieving under the Second Chance
Act anticipates that he will be unsuccessful in his administrative appeals before the twelve (12)
month release mark"). "Typically, courts have not applied the futility exception based on a
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timeliness argun1ent." Ortiz v. Zickefoose, No. CIV.A. 10-6767 NLH, 2011 WL 6140741, at *4
(D.N.J. Dec. 8, 2011). Some courts have opined specifically that "time restriction" arguments like
Ewing's should be denied "because they allow prisoners to engage in the self-serving strategy of
waiting until it is too late to engag_e in the administrative remedy process, and then argue that there
is insufficient time for those remedies to run their course." Romano v. Warden, FCI Fairton, No.
CV-23-1052 (CPO), 2023 WL 3303450, at *5 (D.N.J. May 8, 2023); see also Tetterton v. Warden,

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FCI Fort Dix, No. CV 23-1394 (CPO), 2023 WL 4045086, at *6 (D.N.J. June 16, 2023) (same);
Jackson v. Knight, No. CV 23-2057 (CPO), 2023 WL 4045050, at *3 (D.N.J. June 16, 2023)
(same).
Moreover, exhaustion "serves the twin purposes of protecting administrative agency
authority and promoting judicial efficiency." McCarthy v. Madigan, 503 U.S. 140, 145 (1992).
Exhaustion is "normally desirable" in order to allow for the development of a factual record and
to permit the agency an opportunity to exercise its discretion or apply its expertise, McKart v.

United States, 395 U.S. 185, 193__:_94 (1969), as well as to allow the agency to correct its mistakes,
which conserves judicial resources at the same time, McCarthy, 503 U.S. at 145-46. Here, the
BOP has only been given the chance at an informal resolution of Ewing's claims rather than the
four opportunities required under the administrative remedy process to review its decision. See
28 C.F.R. §§ 542.10-542.19. As such, it has not been given full opportunity to correct potential
mistakes, if any, and the record is incomplete. Additionally, the full weight of the BOP's expertise
has not been applied, as each of the four steps of the administrative remedy process submits an
inmate's claim to an increasing levei of authority within the BOP, culminating with review by the
General Counsel. Id
Without facts concerning Ewing's reaso_ns for abandoning the administrative remedy
process while there was still sufficient time for resolution before his sentence was set to end and
his unsupported belief that the use of the administrative remedy process would be futile, the Court
finds there is no basis for waiver of the exhaustion requirement.
Because the petition will be dismissed on exhaustion grounds, the Court does not decide
Respondent's remaining argument.

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III.

CONCl,USION
For the re~sons set forth above, the Court will construe Respondent's motion to dismiss,

or in the alternative, for summary judgment, ECF 5, as one to dismiss and GRANT the motion.
The petition will be DISMISSED WITHOUT PREJUDICE for failure to exhaust administrative
remedies. A separate order follows.

Isl

September 25 ,2024
Date

Brendan A. Hurson
United States District Judge

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