King-Ivor v. Department of Public Safety and Correctional Services

Filing 4

MEMORANDUM Signed by Judge Paula Xinis on 11/14/2017. (c/m 11/14/17 cags, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

SAM KING-IVOR #162946
Petitioner,
v.

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* CIVIL ACTION NO. PX-17-3103

DEPARTMENT OF PUBLIC SAFETY
AND CORRECTIONAL SERVICES
Respondent.

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*
*****

MEMORANDUM
On October 23, 2017, this petition for habeas corpus was received for filing from Sam KingIvor, a Maryland inmate currently housed at the Western Correctional Institution (“WCI”) in
Cumberland, Maryland. King-Ivor takes issue with the manner in which the Maryland Parole
Commission (“MPC”) and Department of Correction (“DOC”) have computed and carried out his
sentences. Generously construing the petition, it appears that King-Ivor is stating that the MPC and
DOC have failed to commence his sentences from the September 16, 1981 date imposed by a circuit
court judge and this has affected his parole eligibility date.1

ECF No. 1 at 7. He asks that his

sentences run from September 16, 1981.
King-Ivor seeks leave to proceed in forma pauperis (ECF No. 2), which shall be granted. As
King-Ivor is challenging the execution of his sentences, his action shall be construed as a petition for
writ of habeas corpus filed under 28 U.S.C. § 2241.2

1

According to the petition, on June 9, 1982, King-Ivor was sentenced to two
consecutive life sentences, plus fifty years to run consecutive to the life sentences, all to date from
September 16, 1981. ECF No. 1 at 7.
2

When a state prisoner is challenging the very fact or duration of his physical
imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a
speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus. See
Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); McIntosh v. U.S. Parole Comm'n, 115 F.3d 809,
812 (10th Cir. 1997) (“A habeas corpus proceeding attacks the fact or duration of a prisoner's

A habeas corpus petition, with its concomitant requirement of exhaustion of state court
remedies, is the exclusive means for a person "in custody" to attack the fact or duration of his
confinement. See Preiser v. Rodriguez, 411 U.S. 475, 489-490 & 500 (1973) (state prisoner's civil
rights action for injunctive relief seeking restoration of good time credits lost due to disciplinary
proceeding should proceed as habeas corpus matter). A state prisoner must exhaust available state
court remedies as to each and every ground upon which he claims entitlement to habeas relief under
28 U.S.C. § 2241. See Rose v. Lundy, 455 U.S. 509 (1982), Braden v. 30th Judicial Circuit Court of
Kentucky, 410 U. S. 484, 490-91 (1973), Dickerson v. Louisiana, 816 F.2d 220, 225 (5th Cir. 1987).
This total exhaustion rule promotes comity while not unreasonably impairing a prisoner’s right to
relief. Rose, 455 at 523.
An inmate in DOC custody may challenge his sentence computation in one of two ways.
First, an inmate may pursue administrative proceedings to challenge computation regardless of
whether he believes he is entitled to immediate release by:
1.

Filing a request under the administrative remedy procedure,
Division of Correction Directive 185-001, et seq., to the
warden of the institution where he is confined;

2.

Appealing a denial of the request by the warden to the
Commissioner;

3.

Filing a complaint with the Inmate Grievance Office (AIGO@);

4.

Appealing a final decision of the IGO to the Circuit Court;

confinement and seeks the remedy of immediate release or a shortened period of confinement.”). A
petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254 is used to challenge the
validity of a state court conviction, while a petition for a writ of habeas corpus brought under 28
U.S.C. § 2241 is used to challenge the execution of a sentence. Id. at 811; see McIntosh, 115 F.3d at
811–12 (A challenge to the validity of an inmate's conviction and sentence should be brought under
§ 2254, while an attack on the execution [length and duration] of his sentence is properly brought
pursuant to § 2241); Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996).
2

5.

Filing an application for leave to appeal to the Court of Special
Appeals from the decision of the Circuit Court; and

6.

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.

Alternatively, where an inmate seeks an immediate release, he can:
1.

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

2.

Appeal a decision by the Circuit Court to the Court of Special
Appeals; and

3.

Seek certiorari to the Court of Appeals from a decision by the
Court of Special Appeals.

Here, the state court docket3 reflects that King-Ivor has not fully exhausted his state court
remedies as to his issue. Accordingly, this petition must be dismissed for the failure to exhaust
available state court remedies. See Braden, 410 U.S. at 490-91. The court declines to issue a
certificate of appealability. Further, King-Ivor’s motion for appointment of counsel (ECF No. 2)
shall be dismissed as moot. A separate Order follows.

/S/
Paula Xinis
United States District Judge

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See http://www.casesearch.courts.state.md.us/inquiry (last visited November 8, 2017).

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