Fleming v. Randolph et al
MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 10/30/2017. (c/m 10/31/2017 - jf3s, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
NI 30 P 25
KIRK DOUGLAS FLEMING,
Case No.: GJH-15-3272
Kirk Douglas Fleming filed a petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 22411 challengingthe Maryland Parole Commission's failure to hold a timely revocation
hearing following a parole retake warrant served on August 28, 2015. ECF No. 1. Respondent
requests that the Court deny the petition on the basis that Fleming failed to exhaust his claim in
state court prior to instituting this case. ECF No. 4. No hearing is necessary. Loc. R. 105.6 (D.
Md. 2016). For the following reasons, Fleming's petition is denied.
Fleming, a state inmate, was released on parole from the Maryland Division of
Corrections on April 10, 2009. ECF No. 4 at 2.2 The Maryland Parole Commission issued a
retake warrant for Fleming on August 28, 2015, and he was returned to custody on September
30, 2015. Id. At the time Fleming filed his petition, his revocation hearing was scheduled for
'Although this petition was docketed as a petition for writ of habeas corpus under 28 U.S.C. § 2254, it is more
correctly considered a petition for writ of habeas corpus under 28 U.S.C. § 2241 because petitioner is not
challenging the validity of his criminal conviction. Rather, petitioner is asserting that he is entitled to release because
a timely revocation hearing has not been had.
2 Pin cites to documents filed on the Court's electronic filing system (CM/ECF) refer to the page numbers generated
by that system.
2015. Id. As of the date of the filing of Respondent's answer, Fleming had not filed any action in
state court challenging his detention on a retake warrant. Id. at 3.
Fleming, who at the time of the filing of this petition awaited a parole revocation hearing,
claimed he was entitled to release from detention because he was not provided with a revocation
hearing within 60 days of being detained on the retake warrant. ECF No. 1. The relevant
Maryland 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 added).
To the extent Fleming is seeking an order mandating the Maryland Parole Commission to
provide him with a parole revocation hearing, the Court does not have jurisdiction to grant
mandamus relief in this instance. Under 28 U.S.C. § 1361, federal district courts have original
jurisdiction of any action in the nature of mandamus to compel an officer or employee of the
United States or one of its agencies to perform a duty owed to a petitioner; this mandamus
jurisdiction does not apply to state employees, such as the Maryland Parole Commission. See
Gurley v. Superior Court of Mecklenburg County, 411 F.2d 586, 587 (4th Cir. 1969).
To the extent he seeks an order requiring his release from detention, the claim is a matter
of state law and must first be presented to the state court for review before federal habeas relief
may be granted. 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).
The state courts are to be afforded the first opportunity to review federal constitutional
challenges to state convictions in order to preserve the role of the state courts in protecting
federally guaranteed rights. See Preiser v. Rodriguez, 411 U.S. 475 (1973). Thus, before filing a
federal habeas petition, Fleming must exhaust each claim presented by pursuing remedies
available in state court. See Rose v. Lundy, 455 U. S. 509, 521 (1982). The claim must be fairly
presented to the state courts; this means presenting both the operative facts and controlling legal
principles. See Baker v. Corcoran, 220 F.3d 276, 289 (4th Cir. 2000) (citations omitted).
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). At the time
of Fleming's petition, this process had not been completed.
Even if the Court were to have subject matter jurisdiction, Fleming's claim does not
appear to have merit. Although Fleming asserts he was held solely for the retake warrant issued
by the Maryland Parole Commission, he was charged with new criminal offenses before issuance
of the retake warrant.3 ECF No. 4 at 7. As such, it appears that the parole retake warrant was not
the sole document under which Fleming was detained, making the 60 day hearing requirement
Review of the Maryland Judiciary Case Search indicates that Fleming ultimately pled guilty to one count of CDS
possession-not marijuana on March 22, 2016 and was sentenced to six years of incarceration. See State v. Fleming,
Case Number 02-K-15-001385, Circuit Court for Anne Arundel County, Maryland. According to personnel at the
Division of Corrections, Fleming was released on September 18, 2017, likely rendering his petition moot.
For these reasons, Fleming's petition for writ of habeas corpus, ECF No. 1, is denied. A
separate Order follows.
Dated: October30, 2017
GEORGE J. HAZEL
United States District Judge
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