Ellis v. Warden

Filing 6

MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on 2/1/2017. (kns, Deputy Clerk)(c/m 2/2/17)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND

TAVON ELLIS,
Prisoner Identification No. 437-263,
Petitioner,
v.

Civil Action No. TDC-16-3855

WARDEN,
Respondent.

MEMORANDUM OPINION
Tavon Ellis, formerly confined at the Eastern Correctional

Institution

("ECI")

in

Westover, Maryland, has filed a Petition for Writ of Habeas Corpus. The Petition alleges that he
has been held beyond his prison release date because Maryland Division of Correction ("DOC")
officials miscalculated the number of diminution credits to which he is entitled. Because Ellis is
attacking the manner in which his sentence is executed, the Petition is deemed filed pursuant to
28 U.S.C.

S 2241(a).

See Preiser v. Rodriguez, 411 U.S. 475, 485-87 (1973). Ellis also filed a

Motion for Leave to Proceed in Forma Pauperis, ECF No.3, which is denied as moot because he
has paid the $5.00 filing fee.
BACKGROUND
On June 7, 2014, Ellis was charged in the Circuit Court for Baltimore City, Maryland
with unlawful possession of a controlled dangerous substance, possession of drug paraphernalia,
carrying a concealed deadly weapon, and carrying a deadly weapon with intent to injure. See
State v. Ellis, Case No. 814190014, http.//casesearch.courts.state.md.us/.
the concealed

He was convicted of

weapon charge and, on July 31, 2014, was sentenced to three years of

imprisonment, all suspended with the exception of the time spent in detention while awaiting
trial.

Ellis was placed on probation and released.

On April 21, 2015, Ellis was convicted of

violating probation and sentenced to serve the remainder of his suspended sentence, amounting
to two years, ten months, and seven days.
DISCUSSION
In his Petition to this Court, Ellis challenges the length of his incarceration.

He asserts

that DOC officials have applied "time off of the top," presumably, good conduct diminution
credits, as if he were serving a three year sentence, rather than the lesser suspended sentence of
two years, ten months, and seven days. Suppl. Pet. at 5-7, ECF NO.2. As a result, he argues that
he should have been released either on September 23, 2016 or, at the latest, December 13,2016.
I.

Mootness
Ellis's Petition is now moot. "The inability of the federal judiciary 'to review moot cases

derives from the requirement of Art[ic1e] III of the Constitution under which the exercise of
judicial power depends upon the existence of a case or controversy.'"
U.S. 312,316
(1964)).

DeFunis v. Odegaard, 416

(1974) (alteration added) (quoting Liner v. la/co, Inc., 375 U.S. 301, 306 n.3

"[A] case is moot when the issues presented are no longer 'live' or the parties lack a

legally cognizable interest in the outcome."

Powell v. McCormack, 395 U.S. 486, 496 (1969).

"This means that, throughout the litigation, the plaintiff 'must have suffered, or be threatened
with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial
decision.'"

Spencer v. Kemna, 523 U.S. 1,7 (1998) (quoting Lewis v. Cont'! Bank Corp., 494

U.S. 472, 477 (1990)).

Where a convict's

continuing

than

consequence'

injury

other

incarceration

the now-ended

of the conviction-must

has ended, "some concrete and

incarceration

or parole-some

exist if the suit is to be maintained."

2

'collateral
Id. (finding a

challenge to the termination of parole status moot when the period of reincarceration ended); see
also Townes v. Jarvis, 577 F.3d 543, 547 (4th Cir. 2009) (finding that the action was not moot
where the formerly-incarcerated

petitioner,

who was challenging

determination, demonstrated that the "parole-ineligibility

his parole

ineligibility

finding continues to result in collateral

consequences with respect to the duration of his parole and probation"); Nakell v. Attorney Gen.
of North Carolina, 15 F.3d 319, 322-23 (4th Cir. 1994) (identifying collateral consequences

that

prevent mootness).
Here, Ellis stated that he was scheduled for release on Monday, January 9, 2017. DOC
records confirm that he has been released.
his sentence
consequences.

is completed,

Ellis does not challenge the underlying conviction,

and there is no presumption

or demonstration

of collateral

The instant action, therefore, is dismissed as moot. See Bowler v. Ashcroft, 46 F.

App'x 731, at *1 (5th Cir. 2002) (concluding that the petitioner's habeas challenge to the United
States Bureau of Prison's method of calculation of good-time credits was moot where the
petitioner had been released from prison but was still on supervised release).
II.

Exhaustion of Alternative Remedies
The Court notes that even if this case were not moot, the Petition, as amended, would fail

because it contains no indication that Ellis has successfully challenged the alleged miscalculation
in the Maryland courts.

Absent the exhaustion of such challenges, the Petition is subject to

dismissal. See Timms v. Johns, 627 F.3d 525,530-31,533

(4th Cir. 2010).

A prisoner challenging the way the DOC has calculated his sentence has two possible
avenues for relief. First, regardless of whether he believes he is entitled to immediate release, a
prisoner

may challenge

the calculation

of his sentence

or diminution

credits

through

administrative proceedings by: (l) filing a request under the administrative remedy procedure,

3

see

DOC

Directive

185-001

to

procurement/ihs/index-DOC185.shtml,

-004

(2008),

http://www.dpscs.state.md.us/publicservs/

to the Warden of the institution where he is confined; (2)

appealing a denial of the request by the Warden to the Commissioner of Correction; (3) filing a
complaint with the Inmate Grievance Office ("IGO"); (4) appealing a final decision of the IGO
to the Circuit Court; and (5) if necessary, filing an application for leave to appeal to the Court of
Special Appeals of Maryland from the decision of the Circuit Court. See Md. Code Ann., Corr.
Servs.

S

10-210 (West 2002); DOC Directive 185-002. If the Court of Special Appeals grants

the application for leave to appeal, but denies relief on the merits, the prisoner must also seek
permission to appeal to the Court of Appeals of Maryland.
Proc.

S

See Md. Code Ann., Cts. & Jud.

12-201 to -202 (West 2011); Williams v. State, 438 A.2d 1301, 1305 (Md. 1981).

Although Ellis has stated that he has begun the administrative remedy procedure process, the
initial step towards exhaustion, he does not indicate that he has completed all steps in the
process.
Alternatively,

a pnsoner

claiming

entitlement

to immediate

release

can bypass

administrative remedies and seek relief by filing a petition for writ of habeas corpus in a Circuit
Court. See Md. House o/Corr. v. Fields, 703 A.2d 167, 175 (Md. 1997) ("[A]n inmate is not
required to utilize the inmate grievance procedure, and courts will entertain an inmate's petition
for habeas corpus when the plaintiff alleges entitlement to immediate release and makes a
colorable claim that he or she has served the entire sentence less any mandatory credits."),
abrogated on other grounds by Moats v. Scott, 751 A.2d 462 (Md. 2000); see also Md. Rule 15302(a)(l).

If unsuccessful, the prisoner may appeal the Circuit Court decision to the Court of

Special Appeals, see Frost v. State, 647 A.2d 106, 109 & n.5 (Md. 1994); e.g., Merritt v.
Corcoran, 658 A.2d 1153, 1154 (Md. Ct. Spec. App. 1995), and thereafter may seek permission

4

for further review from the Court of Appeals, Md. Code Ann., Cts. & Jud. Proc.

S

12-201.

Nothing in the pleadings suggests Ellis has filed such a petition in the state courts.
III.

Certificate of Appealability
Rule 11(a) of the Rules Governing Section 2254 Cases provides that the district court

"must issue or deny a certificate of appealability when it enters a final order adverse to the
applicant" in such cases.
applicant, 28 U.S.C

S

Because the accompanying

Order is a final order adverse to the

2253(c)(1) requires issuance of a certificate of appealability before an

appeal can proceed.
A certificate of appealability may issue if the prisoner has made a "substantial showing of
the denial of a constitutional right."

28 U.S.C.

S

2253(c)(2).

When a district court rejects

constitutional claims on the merits, a petitioner may satisfy the standard by demonstrating that
"reasonable jurists would find the district court's
debatable or wrong."

assessment

of the constitutional

claims

Slack v. McDaniel, 529 U.S. 473, 484 (2000). When a petition is denied

on procedural grounds, the petitioner must show that reasonable jurists "would find it debatable
whether the petition states a valid claim of the denial of a constitutional right" and "whether the
district court was correct in its procedural ruling." Id. at 478.
Here, Ellis's Claims are dismissed on procequral grounds, and this Court finds that Ellis
has not made the requisite showing to warrant a certificate of appealability.
declines to issue a certificate of appealability.

The Court therefore

Ellis may still request that the United States Court

of Appeals for the Fourth Circuit issue such a certificate.

See Lyons v. Lee, 316 F.3d 528, 532

(4th Cir. 2003) (considering whether to grant a certificate of appealability after the district court
declined to issue one).

5

CONCLUSION
For the foregoing reasons, the Court dismisses the Petition for Writ of Habeas Corpus
without prejudice. A separate Order shall issue.

Date:

February 1,2017
THEODORE D. C
United States District

6