Case 1:16-cv-01021-ELH Document 1 Filed 04/06/16 Page 1 of 61
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

MARYLAND RESTORATIVE JUSTICE INITIATIVE, 1111 Park Avenue, Suite 151 Baltimore, MD 21201 County of Residence: Baltimore City

CALVIN MCNEILL # 163182 Jessup Correctional Institution 7800 House of Correction Road Jessup, MD 20794 County of Residence: Anne Arundel

NATHANIEL FOSTER # 174-966 Maryland Correctional Institution Hagerstown 18601 Roxbury Road Hagerstown, MD 21746 County of Residence: Washington
KENNETH TUCKER # 130-850 Jessup Correctional Institution 7800 House of Correction Road Jessup, MD 20794 County of Residence: Anne Arundel

COMPLAINT FOR DECLARATORY RELIEF, INJUNCTIVE RELIEF, AND ATTORNEY’S FEES
Civil Action No. ________________

Plaintiffs,

v.
GOVERNOR LARRY HOGAN, In his official capacity 100 State Circle Annapolis, Maryland 21401 County of Residence: Anne Arundel

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DAVID BLUMBERG, In his official capacity Hampton Plaza, 300 East Joppa Road Suite 1000 Towson, Maryland 21286 County of Residence: Baltimore
STEPHEN MOYER, In his official capacity Hampton Plaza, 300 East Joppa Road Suite 1000 Towson, Maryland 21286 County of Residence: Baltimore
WAYNE WEBB, In his official capacity Hampton Plaza, 300 East Joppa Road Suite 1000 Towson, Maryland 21286 County of Residence: Baltimore
Defendants.

COMPLAINT

NATURE OF THE CASE

1. This challenge is brought by and on behalf of Maryland “juvenile lifers” -- individuals who were sentenced to life in prison in state courts for acts committed when they were minors, without appropriate consideration of their youth. Plaintiffs have been and continue to be denied a meaningful opportunity for release, in violation of the Eighth Amendment to the U.S. Constitution and Article 25 of the Maryland Declaration of Rights.

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2. The United States Supreme Court, in a series of decisions, has forbidden as unconstitutional life without parole (“LWOP”) for all juveniles but the “rare juvenile whose crime reflects irreparable corruption” and declared this substantive constitutional rule retroactive. Montgomery v. Louisiana, 577 U.S. __, 136 S.Ct. 718, 734 (2016) (quoting Miller v. Alabama, 567 U.S. __, 132 S.Ct. 2455, 2469 (2012)); Graham v. Florida, 560 U.S. 48, 82 (2010). !
3. The Court has found that young people are constitutionally different from adults for the purpose of sentencing due to three distinctive attributes of youth that mitigate their culpability: transient immaturity; vulnerability to external forces; and character traits that are still being formed. Montgomery, 136 S.Ct. at 73; Miller, 132 S.Ct. at 2464; Graham, 560 U.S. at 68; Roper v. Simmons, 543 U.S. 551, 569570 (2005).!
4. The “penological justifications for life without parole collapse in light of ‘the distinctive attributes of youth,’” rendering life without parole an unconstitutionally “disproportionate” punishment as to “all but the rarest of juvenile offenders, whose crimes reflect permanent incorrigibility.” Montgomery, 136 S.Ct. at 734-735. !
5. Accordingly, the Court has forbidden as unconstitutional LWOP sentences for youth who have committed non-homicide offenses (Graham), and LWOP sentences for any youth whose homicide crime

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reflects “unfortunate yet transient immaturity.” Montgomery, 136 S.Ct. at 734 (quoting Miller, 132 S.Ct. at 2465). The cases establish that only in the “rarest” cases of “irreparable corruption” will such a penalty be appropriate. Thus, by definition, criminal sentencing schemes that mandate life in prison fail to allow adequate consideration of youth to make this assessment. Id. at 733; Miller, 132 S.Ct. at 2469.! 6. The Court defines “life without parole” as a sentence of life imprisonment that denies an individual a “meaningful” and “realistic” opportunity for release upon demonstrated maturity and rehabilitation. Graham, 560 U.S. at 75, 82; Miller, 132 S.Ct. at 2469. The Court has expressly rejected executive clemency as affording such opportunity. Graham, 560 U.S. at 70 (citing Solem v. Helm, 463 U.S. 277, 300-301 (1983)). 7. Together, these decisions establish that the Eighth Amendment forbids a statutory scheme that (i) imposes life sentences upon minors without appropriate consideration of their distinctive attributes as youth, and then (ii) fails to provide them a meaningful and realistic opportunity for release. Maryland law fails this test on both accounts.! 8. In Maryland, more than 200 individuals, including Plaintiffs Calvin McNeill, Nathaniel Foster, and Kenneth Tucker, are serving life sentences for offenses committed as juveniles. The majority of these individuals were sentenced under Maryland’s mandatory sentencing

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scheme, which requires judges to impose life imprisonment in cases of murder without adequate consideration of youth to determine whether an individual is among the rare minors whose offense reflects “irreparable corruption.” Others were sentenced under Maryland’s sentencing scheme that permits life sentences for non-homicide offenses, again without adequate consideration of youth status. All of these individuals are serving life sentences that are, theoretically, parole-eligible. ! 9. Many of these individuals have now served 30 or 40 years or more and have made admirable progress to demonstrate their maturity and rehabilitation. Yet, no juvenile lifer has been paroled in Maryland in the last two decades.! 10. As a matter of Maryland law, the authority to parole any lifer lies exclusively in the hands of the Governor. Thus, rather than affording youth a meaningful and realistic opportunity for release, Maryland’s parole scheme functions as a system of ad hoc executive clemency in which grants of release are exceptionally rare, are governed by no substantive, enforceable standards, and are masked from view by blanket assertions of executive privilege. Furthermore, Defendants lack policies that protect the constitutional rights of juvenile lifers to a meaningful opportunity for release; rely upon risk assessment tools to make recommendations about release that discriminate against those

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who were minors at the time of offense; and prohibit youth from progressing through the DOC system to demonstrate their rehabilitation. 11. As a result of these practices, juvenile lifers in Maryland who have matured, who have done everything within their power to reform and to demonstrate their rehabilitation, and who the Supreme Court says deserve an opportunity for a second chance to live outside prison walls, are far more likely to die in Maryland’s prisons than ever to receive this second chance. Their sentences have been converted into de facto LWOP sentences by virtue of the denial of a meaningful and realistic opportunity for release. 12. In these respects, the Maryland parole system violates the state and federal constitutions as applied to individuals serving life sentences for offenses committed as youth, and subjects them to unconstitutionally disproportionate punishment. 13. Plaintiffs are 1) the Maryland Restorative Justice Initiative, a nonprofit membership organization dedicated to prisoners’ rights, which sues on behalf of its members; and 2) three individuals who were sentenced to life in prison for offenses they committed as juveniles without adequate consideration of youth, who have been incarcerated for decades, who have matured and demonstrated their rehabilitation during their incarceration through their impeccable behavior and

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institutional accomplishments, but who have nonetheless been denied any fair opportunity for release by the defendants. 14. Defendants are state officials responsible for Maryland policies and practices that deny juvenile lifers, including the Plaintiffs, the requisite meaningful and realistic opportunity for release, thus converting their life-with-parole sentences to de facto life-withoutparole sentences without regard for their youth. 15. This lawsuit seeks declaratory and injunctive relief (i) to declare unconstitutional Maryland’s statutory scheme to the extent that it mandates judges to impose life sentences without adequate consideration of youth status, (ii) to remedy Maryland’s unconstitutional failure to provide a meaningful and realistic opportunity for release to MRJI’s juvenile lifer members, and (iii) to provide relief for individual plaintiffs Calvin McNeill, Nathaniel Foster, and Kenneth Tucker, who received neither adequate consideration of their youth at sentencing nor any meaningful and realistic opportunity for release over the decades since, resulting in grossly disproportionate punishment in violation of the Eighth Amendment and Article 25 of the Maryland Declaration of Rights.

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PARTIES I. Plaintiffs 16. The Maryland Restorative Justice Initiative (“MRJI”) is a grassroots
membership organization dedicated to advocating for individuals serving long-term prison sentences, to ensure they are treated fairly within the system and receive meaningful opportunities for rehabilitation and release. MRJI was founded by Walter Lomax while he was incarcerated in the Division of Correction (DOC) with a life sentence for a crime he did not commit and for which he has since been exonerated. The organization’s membership consists of individuals impacted by the criminal justice system, including, among others, individuals serving life sentences who were juveniles at the time of their offenses, parents and other family members of these individuals, “lifers groups” made up of individuals serving life sentences at various Maryland prisons, and individuals serving life sentences who obtained release through court proceedings correcting legal errors in their cases. For the last decade, MRJI has advocated on behalf of its membership with a singular focus on changing the policies and practices that deny its lifer members a meaningful opportunity for release, and educating the public about the ways in which the state’s practices harms its members. MRJI sues for declaratory and injunctive relief on behalf of its members, who are subjected to the unconstitutional policies and

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practices described herein. MRJI members have been injured by the acts and policies of the defendants in the manner set forth below. 17. Plaintiff Calvin McNeill is an MRJI member serving a mandatory life sentence, imposed without appropriate consideration of his youth status, for an offense that occurred on his 17th birthday in 1981. During the 35 years he has been incarcerated, Mr. McNeill has matured into a responsible leader who has had only one minor infraction in the last 25 years, served as a volunteer for numerous prison programs, and earned commendations from prison officials for his accomplishments. He is currently incarcerated at Jessup Correctional Institution. Mr. McNeil has been injured by the acts and policies of the defendants in the manner set forth below. 18. Plaintiff Nathaniel Foster is an MRJI member who was sentenced to life in prison, despite having no prior criminal record, for an offense that occurred when he was 17 in 1983. He received a mandatory life sentence that was imposed without adequate consideration of his youth status. Mr. Foster is now 50 years old. He has never had a violent infraction during his entire, three-plus decades of incarceration, has consistently maintained employment positions of great trust, and served as a mentor and volunteer in several capacities. He is incarcerated at Maryland Correctional Institution in Hagerstown. Mr.

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Foster has been injured by the acts and policies of the defendants in the manner set forth below. 19. Plaintiff Kenneth Tucker is an MRJI member who received a mandatory life sentence in 1976, imposed without adequate consideration of youth status, for an offense that occurred when he was 17. Mr. Tucker is now 59 years old, and has been incarcerated for more than four decades. While incarcerated, Mr. Tucker earned his GED, an associate’s degree and a bachelor’s degree in psychology. He has not had a single infraction in ten years and currently works as an aide to terminally ill patients in the hospital at Jessup Correctional Institution, where he is incarcerated. Mr. Tucker has been injured by the acts and policies of the defendants in the manner set forth below. II. Defendants 20. Defendant Larry Hogan is Governor of the State of Maryland. In his capacity as Governor, Hogan appoints the members of the Maryland Parole Commission (MPC), and decides whether individuals serving parole-eligible life sentences will be paroled, as well as whether any individual will receive a grant of executive clemency. Also in his capacity as Governor, Hogan sets the policies and practices for Maryland Parole Commission, and oversees the Maryland Division of Corrections (“DOC”). Governor Hogan is sued in his official capacity only.

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21. Defendant David Blumberg chairs the Maryland Parole Commission, a division of the Maryland Department of Public Safety and Correctional Services (“DPSCS”). The Maryland Parole Commission makes recommendations regarding parole and commutation for individuals serving life sentences. The Parole Commission’s operations are governed by statute and regulations. There are ten Commissioners, who are appointed by the DPSCS Secretary with the Governor’s approval and Senate advice and consent to six-year terms. Commissioners conduct parole hearings and make determinations about whether particular individuals will be recommended for parole and/or commutation, as well as making decisions about intermediate steps such as programmatic requirements. As Chair, Mr. Blumberg exercises ultimate authority – in consultation with the Governor and the other Commissioners – with respect to the Parole Commission’s policies, practices, and procedures. He is the primary policymaker, spokesperson and administrator for the MPC, as well as the primary liaison between the MPC and the Governor. Mr. Blumberg is sued only in his official capacity as Chair of the Maryland Parole Commission.
22. Defendant Stephen Moyer is the DPSCS Secretary. In his capacity as Secretary, Moyer exercises authority over the policies and practices of the DOC, a subdivision of DPSCS and the parent organization for the

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Maryland Parole Commission. Secretary Moyer is sued in his official capacity only. 23. Wayne Webb is the Commissioner of Corrections. As Commissioner, he oversees the DOC, reporting only to Defendant Moyer. In his capacity as Commissioner, Webb is responsible, among other things, for managing the state-operated prisons in which lifers are housed and for establishing policies and practices for the DOC that apply systemwide, including how individuals are assigned to any particular security status or facility. Commissioner Webb has ultimate decision-making authority about any individual’s classification, access to programs, and determinations about whether or not the DOC will honor a recommendation for programming or security change from the MPC. He is sued in his official capacity only.
JURISDICTION AND VENUE 24. This Court has subject matter jurisdiction over this action pursuant to
28 U.S.C. §§ 1331, 1323, 1367, 2201 and 2202. 25. Venue is proper in the District of Maryland, as the conduct out of
which this action arose occurred in this district. 28 U.S.C. § 1391(b).

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FACTUAL ALLEGATIONS
I. YOUTH HAVE DIMINISHED CULPABILITY AND GREATER PROSPECTS FOR REFORM THAN ADULTS AND THE STATE CANNOT, EXCEPT IN THE RAREST OF CASES, CONDEMN YOUNG OFFENDERS TO DIE IN PRISON WITHOUT A MEANINGFUL OPPORTUNITY FOR RELEASE.
A. Cases of the U.S. Supreme Court establish that youth are different from adults in ways that diminish the penological justifications for the harshest punishments.
26. A series of U.S. Supreme Court decisions have established that
“children are constitutionally different from adults for purposes of
sentencing.” Montgomery, 136 S.Ct. at 733 (quoting Miller, 132 S.Ct. at
2464 (citing Roper, 543 U.S. at 569-570; Graham, 560 U.S. at 68
(2015))).
27. “These differences result from children’s diminished culpability and
greater prospects for reform, and are apparent in three primary ways.”
Id. (internal quotation marks and citations omitted).
28. “‘First, children have a lack of maturity and an underdeveloped sense
of responsibility, leading to recklessness, impulsivity, and heedless
risk-taking. Id. (internal quotation marks and citations omitted).
29. “Second, children are more vulnerable to negative influences and
outside pressures, including from their family and peers; they have
limited control over their own environment and lack the ability to
extricate themselves from horrific, crime-producing settings.” Id.
(internal quotation marks and citations omitted).

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30. “And third, a child’s character is not as well-formed as an adult’s; his traits are less fixed and his actions less likely to be evidence of irretrievable depravity.” Id. (internal quotation marks and citations omitted).
31. “The Eighth Amendment’s prohibition of cruel and unusual punishment guarantees individuals the right not to be subjected to excessive sanctions. That right … flows from the basic precept of justice that punishment for crime should be graduated and proportioned to both the offender and the offense.” Miller, 132 S.Ct. at 2463 (internal quotation marks and citations omitted).
32. A life without-parole sentence “‘means denial of hope; it means that good behavior and character improvement are immaterial; it means that whatever the future might hold in store for the mind and spirit of [the convict], he will remain in prison for the rest of his days.’” Graham, 560 U.S. at 70 (quoting Naovarath v. State, 105 Nev. 525, 526, 779 P.2d 944 (1989)) (parenthetical original).
33. “[T]he penological justifications for life without parole collapse in light of ‘the distinctive attributes of youth.’” Montgomery, 136 S.Ct. at 734 (quoting Miller, 132 S.Ct. at 2465).
34. “Because retribution ‘relates to an offender’s blame-worthiness, the case for retribution is not as strong with a minor as with an adult.’” Id. at 733 (quoting Miller, 132 S.Ct. at 2465).

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35. “The deterrence rationale likewise does not suffice, since ‘the same characteristics that render juveniles less culpable than adults – their immaturity, recklessness, and impetuosity – make them less likely to consider potential punishment.’” Id. (quoting Miller, 132 S.Ct. at 2465).
36. “The need for incapacitation is lessened, too, because ordinary adolescent development diminishes the likelihood that a juvenile offender ‘forever will be a danger to society.’” Id. (quoting Miller, 132 S.Ct. at 2465).
37. “Rehabilitation cannot justify the sentence, as life without parole ‘foreswears altogether the rehabilitative ideal.’” Id. (quoting Miller, 132 S.Ct. at 2465).
38. Thus, “the characteristics of youth, and the way they weaken rationales for punishment, can render a life-without-parole sentence disproportionate” to juvenile offenders’ culpability for crimes they commit, and thus in violation of the Eighth Amendment’s prohibition against grossly excessive punishment. Miller, 132 S. Ct. at 2465-66.

B.

As a result of these differences, the Court has forbidden

LWOP as unconstitutionally disproportionate

punishment for all but the rarest of youth who

demonstrate “irreparable corruption.”

39. In 2010, the U.S. Supreme Court banned LWOP sentences for juvenile

offenders in non-homicide cases as unconstitutionally disproportionate

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punishment that violates the Eighth Amendment. Graham, 560 U.S. at 82. 40. In 2012, the Court prohibited mandatory LWOP for juvenile offenders in homicide cases as unconstitutionally disproportionate punishment that violates the Eighth Amendment. Miller, 132 S.Ct. at 2475. It required sentencing courts to “consider a child’s ‘diminished culpability and heightened capacity for change’ before condemning him or her to die in prison[,]” and to “take into account ‘how juveniles are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.’” Montgomery, 136 S.Ct. at 726 and 733 (quoting Miller, 132 S.Ct. at 2460 and 2469, respectively). 41. “Because Miller determined that sentencing a child to life without parole is excessive for all but the rarest juvenile offender whose crime reflects irreparable corruption, it rendered life without parole an unconstitutional penalty for a class of defendants because of their status – that is, juvenile offenders whose crimes reflect the transient immaturity of youth.” Id. at 734 (internal quotation marks and citations omitted). 42. In 2016, the Court ruled that Miller announced a substantive rule of constitutional law and was therefore retroactive. Id. at 736.

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43. “[A] lifetime in prison is a disproportionate sentence for all but the rarest of juveniles, those whose crimes reflect ‘irreparable corruption.’” Id. at 726 (quoting Miller, 132 S.Ct. at 2469; Roper, 543 U.S. at 573).
44. “Miller made clear that ‘appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.’” Id. at 733-734.
45. “Miller’s conclusion that the sentence of life without parole is disproportionate for the vast majority of juvenile offenders raises a grave risk that many are being held in violation of the Constitution.” Id. at 736.
C. For those who are not “irreparably corrupt,” there must be a meaningful and realistic opportunity to obtain release, and Maryland’s parole system fails to meet this standard.
46. The Eighth Amendment forbids for all but the rarest juveniles a “sentence [that] guarantees he will die in prison without any meaningful opportunity to obtain release, no matter what he might do to demonstrate that the bad acts he committed as a teenager are not representative of his true character, even if he spends the next half century attempting to atone for his crimes and learn from his mistakes.” Graham, 560 U.S. at 79.
47. To avoid this unconstitutionally disproportionate punishment for juveniles, the state must provide ‘some meaningful opportunity to

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obtain release based on demonstrated maturity and rehabilitation.’”
Miller, 132 S.Ct. at 2469 (quoting Graham, 560 U.S. at 75).
48. “‘The remote possibility of [executive clemency] does not mitigate the
harshness of the [life-without-parole] sentence.” Graham at 70 (citing
Solem, 463 U.S. at 300-301) (parenthetical added).
49. The differences between clemency and parole were explained in Solem
v. Helm:
As a matter of law, parole and commutation are different concepts, despite some surface similarities. Parole is a regular part of the rehabilitative process. Assuming good behavior, it is the normal expectation in the vast majority of cases. The law generally specifies when a prisoner will be eligible to be considered for parole, and details the standards and procedures applicable at that time. Thus it is possible to predict, at least to some extent, when parole might be granted. Commutation, on the other hand, is an ad hoc exercise of executive clemency. A Governor may commute a sentence at any time for any reason without reference to any standards.
Solem, 463 U.S. at 300-01 (citations omitted and emphasis added).
50. In Maryland, as a matter of law, the authority to parole any lifer lies
exclusively in the hands of the Governor. Thus, rather than affording
youth a meaningful and realistic opportunity for release, Maryland’s
parole scheme functions as a system of ad hoc executive clemency in
which grants of release are exceptionally rare, are governed by no
substantive, enforceable standards, and are masked from view by
blanket assertions of executive privilege.

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51. “Allowing [juvenile] offenders to be considered for parole ensures that juveniles whose crimes reflected only transient immaturity—and who have since matured—will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment.” Montgomery, 136 S.Ct. at 736.
52. Juvenile lifers “must be given the opportunity to show their crime did not reflect irreparable corruption; and, if it did not, their hope for some years of life outside prison walls must be restored.” Id. at 736-737.
53. “Maturity can lead to that considered reflection which is the foundation for remorse, renewal, and rehabilitation. A young person who knows that he or she has no chance to leave prison before life's end has little incentive to become a responsible individual.” Graham, 560 U.S. at 79.
54. “In some prisons, moreover, the system itself becomes complicit in the lack of development. … [I]t is the policy in some prisons to withhold counseling, education, and rehabilitation programs for those who are ineligible for parole consideration. A categorical rule against life without parole for juvenile nonhomicide offenders avoids the perverse consequence in which the lack of maturity that led to an offender's crime is reinforced by the prison term.” Id. (cross-reference omitted).
55. The Supreme Court has determined that, at least, the following evidence is relevant to the issue of rehabilitation of juvenile lifers:

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whether the juvenile was a “troubled, misguided youth;” whether the juvenile offender has become “a model member of the prison community;” whether the juvenile offender participates in programs and is a “trainer and coach;” and whether the juvenile offender offers “advice and serve[s] as a role model to other inmates.” Montgomery, 136 S.Ct. at 736.
II. MARYLAND’S POLICIES AND PRACTICES SUBJECT JUVENILE LIFERS TO UNCONSTITUTIONALLY DISPROPORTIONATE PUNISHMENT BY DENYING ALL JUVENILE LIFERS A MEANINGFUL AND REALISTIC OPPORTUNITY FOR RELEASE REGARDLESS OF INDIVIDUAL MERIT. A. Overview of how Maryland violates the Constitutional rights of juveniles.
56. Maryland’s current practices all but guarantee that juveniles sentenced to life -- even those with a theoretical opportunity for parole -- will die in prison no matter how thoroughly they have been reformed, all without adequate consideration of their youth status.
57. Maryland law permits life sentences for youth in certain non-homicide cases, see, e.g., Md. Code, Crim. Law § 3-303(d), and mandates life sentences in all cases of first-degree murder without consideration of the youth of the offender. Md. Code, Crim. Law § 2-201(b) (“Section 2201(b)”). In practice, the State has for decades denied those sentenced under this law any meaningful opportunity for release on parole

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regardless of demonstrated rehabilitation. This violates the rights of juvenile lifers under the Eighth Amendment and Article 25. 58. Although the law describes such sentences as “parole-eligible” life sentences, in practice juvenile lifers are never paroled, regardless of their demonstrated maturity, rehabilitation, or other individual aspects of their record. Over the last 20 years, and as of the date of this filing, no juvenile lifer has been paroled, irrespective of their reform as they matured into adulthood, or their readiness for release. 59. Maryland’s parole scheme for juvenile lifers is a system of parole in name only. In all significant respects, it is an ad hoc system of executive clemency in which opportunities for release are all but nonexistent. It fails to afford juvenile lifers a meaningful and realistic opportunity for release upon rehabilitation. 60. As a matter of law, the authority to parole any lifer is exclusively in the hands of the Governor without any transparency, constraints, standards or mechanisms for review and without regard for an individual’s juvenile status at time of offense. 61. Moreover, the state’s parole policies and practices make no distinction between youth and adults, fail to adequately consider the attributes of youth, and rely upon risk assessment tools that penalize those who were young at the time of offense, all while fundamentally impeding

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individuals from vindicating their rights to a meaningful opportunity for release. 62. By automatically classifying all juvenile lifers as maximum security upon commitment to DOC and categorically barring lifers, including juvenile lifers, from progression to security classifications below medium, Maryland denies juvenile lifers opportunities to progress through the DOC system to demonstrate their maturity and rehabilitation, in violation of the Eighth Amendment and Article 25. 63. By operating a scheme in which the only opportunity for release is ad hoc and unreviewable executive clemency, devoid of standards, by which it is nearly impossible to actually obtain release regardless of individual merit, Maryland’s policies and practices convert life-withparole sentences into de facto life-without-parole sentences. As applied to individuals serving life sentences for offenses committed as youth, this subjects them to unconstitutionally disproportionate punishment in violation of the Eighth Amendment and Article 25.
B. Maryland mandates or permits life sentences for juveniles whose crimes do not reflect irreparable corruption.
64. Approximately 200 individuals who were juveniles at the time of their offenses are serving life sentences in Maryland that purport to be parole-eligible.

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65. The majority of these juvenile lifers were sentenced under a mandatory sentencing scheme that requires judges to impose a sentence of life in any case of first-degree murder regardless of a person’s juvenile status. Md. Code, Crim. Law § 2-201(b). Judges may also impose life without parole. Id.
66. Judges may impose life or LWOP as punishment for certain nonhomicide offenses as well. See, e.g., Md. Code, Crim. Law § 3303(d)(2)-(4).
67. There is no minimum age for being charged with murder or receiving a mandatory life sentence in Maryland.
68. There is no minimum age for being charged with and receiving a life with parole sentence for a non-homicide crime.
69. Maryland law requires no consideration of youth in sentencing proceedings in such cases. If considered at all, an offender’s youth is generally only considered in passing, as the life sentence is mandatory.

C.

Maryland’s parole scheme operates as a system of

clemency that fails to afford juvenile lifers a meaningful

and realistic opportunity for release upon rehabilitation.!

1. The Governor’s clemency authority is exclusive and devoid of standards.

70. By statute only the Governor may grant parole to any individual

serving a life sentence. Md. Code, Corr. Serv. § 7-301(d)(4); see also

Code of Maryland Regulations (“COMAR”) 12.08.01.01 (“The Governor

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has the exclusive power to grant parole to prisoners serving a sentence of life imprisonment.”). 71. Likewise, only the Governor may commute an individual’s sentence pursuant to Maryland Correctional Services Article § 7-601. Such acts are expressly defined as acts of clemency. Md. Code, Corr. Serv. § 7101(d) (“‘Commutation of sentence’ means an act of clemency in which the Governor, by order, substitutes a lesser penalty for the grantee's offense for the penalty imposed by the court in which the grantee was convicted.”). 72. The Maryland Parole Commission can make recommendations regarding parole, but the Governor has no obligation to consider or to adopt them. See Md. Code, Corr. Serv. § 7-206(3)(i) (“The Commission shall … (3) review and make recommendations to the Governor: (i) concerning parole of an inmate under a sentence of life imprisonment.”). Similarly, if requested by the Governor, the Maryland Parole Commission may make recommendations regarding commutations as it does in cases of parole. Md. Code, Corr. Serv. § 7206(3)(ii).1

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1 Regulations provide that “[t]he Commission will recommend to the Governor a commutation of a life sentence where the case warrants special consideration or where the facts and circumstances of the crime justify special consideration, or both.” COMAR 12.08.01.15(B).

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73. There are no substantive statutory or regulatory factors guiding or limiting the Governor’s decision-making regarding parole for lifers.2 Md. Code, Corr. Serv. § 7-301(d)(4); see also Lomax v. Warden, 356 Md. 569, 578 (Md. Court of Appeals 1999) (“The statutory provision applicable to the Governor’s approval, § 7-301(d)(4) of the Correctional Services Article, contains no factors or guidelines for the Governor’s exercise of discretion. Accordingly, the Governor is free to employ whatever guidelines he desires in exercising his discretion, except for guidelines that are constitutionally impermissible.”).
74. Nothing requires the Governor to consider an individual’s youth at time of offense in exercising his discretion for parole, and all evidence suggests that youth is not in fact considered, given that no juvenile lifer has been paroled in the past 20 years.
75. There are no statutory limits or constraints upon the Governor’s commutation authority, nor factors that the Governor must consider in deciding such cases.
76. As is the case for commutations, the Governor is under no obligation to announce the bases upon which he will consider granting or denying parole, and Maryland governors have not promulgated or issued any written, publicly-available guidance about any such criteria.

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2 Legislation enacted in 2011 requires the Governor to act within 180 days of a recommendation of the Parole Commission. Md. Code, Corr. Serv. § 7-301(d)(5).

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77. In fact, even if a Governor did announce such criteria, he would not be bound by them and would be under no obligation to adhere to them, and could change them at any time without notice or explanation.
78. Whether the Governor rejects a recommendation for parole or a recommendation for commutation, no explanation or rationale is provided to the individual who has been denied release.
79. There is no process for appeal or review of the Governor’s decision in either case.
80. This statutory framework has remained largely unchanged for at least half a century, with the single exception that since 2011 the Governor has been required to exercise his unfettered discretion on parole within 180 days of an MPC recommendation.
2. MPC policies and practices, combined with the scheme of executive clemency, deny juveniles a meaningful opportunity for release.
81. The policies and practices of the MPC exacerbate Maryland’s unconstitutional parole system, which functions as a system of executive clemency rather than parole with respect to juvenile lifers.
82. The MPC’s policies and practices make no distinction between youth and adults, fail to adequately consider the attributes of youth, and in some respects disproportionately penalize those who were youth at the time of offense, all while fundamentally impeding individuals from vindicating their right to a meaningful opportunity for release.

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83. The MPC’s policies make no distinction between those whose offenses occurred as youth and those whose offenses occurred as adults.
84. None of the statutory factors to be considered in determining whether an individual is suitable for parole include explicit consideration of youth at the time of the offense. See Md. Code, Corr. Serv. § 7-305. Upon information and belief, plaintiffs aver that parole commissioners receive no training pertaining to adolescent psychological development or any other training that would assist commissioners in contextualizing offenses committed by youth in accordance with the findings of Roper, Graham, Miller and Montgomery.
85. Maryland does not provide juvenile lifers with counsel in parole proceedings, nor permit any privately-retained counsel to attend or to participate in parole hearings. Typically, no written record is made of what is said and the Parole Commission provides no written explanation of its decision other than a pre-printed parole sheet stating that all statutory factors were considered, which commissioners may annotate briefly and sign. MPC policies prohibit individuals from seeing key information in their own files, including recommendations of the sentencing judge, states’ attorney, or case manager, Commissioner notes, victim statements, and risk assessments. These practices impede individuals from vindicating their right to a meaningful opportunity for release by undermining their ability to

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prepare for parole hearings, correct inaccurate information in their files and to know what steps they must take to improve their chances for release. 86. In several instances, MRJI members have learned only indirectly, through the statements of parole commissioners in their hearings, that there is critical, damaging and erroneous information in their files that is adversely affecting their chances for parole. 87. Moreover, MPC practices penalize juvenile lifers by relying heavily upon risk assessment tools that assess the individual as if frozen in time upon their arrival to DOC rather than who he or she is at the time of assessment. These tools take no account of an individual’s maturation over time, accomplishments and institutional record. Rather, they penalize those who were youth upon arrival to DOC by assessing them as they were when they were most risky and too young to have developed factors that the tools deem “protective” against recidivism. By utilizing these tools, MPC virtually ensures that every juvenile lifer will demonstrate a moderate or high level of risk even when individuals have been thoroughly rehabilitated and present little or no risk. 88. In some instances, individuals have been told by commissioners that the MPC officials were skeptical of the validity of the risk assessment tools but bound to rely upon them. Upon information and belief,

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members of the parole commission themselves have raised concerns about the validity of the assessments used to determine risk and/or the weight they are given in determining suitability for parole. 89. The MPC takes the position that its recommendations and communications with the Governor and his staff are privileged, regardless of whether they are recommendations for parole or commutation. Thus, all an individual may know is that his file is “on the Governor’s desk.” The person does not know, because the MPC refuses to say, whether he is being considered for parole or commutation. 90. Upon information and belief, at various points during the past two decades, the MPC has directly or indirectly been instructed to slow down or to limit the number of individuals it is recommending for parole and/or commutation. 3. DOC policies automatically deny all juvenile lifers rehabilitative opportunities that affect their opportunity for release. 91. In 1994, the DOC adopted policies that bar juvenile lifers, as well as any other lifer, from moving below medium security status regardless of the individual’s institutional record. In 1997, the DOC adopted policies that serve categorically to bar lifers, including juveniles, from eligibility for work release and family leave programs. These policies have remained in effect without significant change for the last two

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decades and continue to govern the classification and access to programs for all juvenile lifers. 92. In the DOC, security classifications determine virtually all aspects of an individual’s conditions of confinement. An individual’s security classification determines in which institutions he or she may be housed, the level of restriction upon his or her freedom of movement, and all aspects of programmatic eligibility, including access to treatment, training, and employment. 93. From lowest to highest, DOC’s security classification levels are prerelease, minimum, medium, and maximum. Typically, classification is assigned upon commitment to the DOC and reviewed periodically thereafter. DOC’s classification scheme is a score-based system that assigns and deducts points based on certain factors to determine at which security level an individual may be safely assigned. To carry out this scheme, DOC uses an initial “security classification instrument” and subsequently reassesses such determinations using a “security reclassification instrument.” 94. However, DOC largely disregards this scoring scheme with respect to juvenile lifers. DOC automatically classifies juveniles who are committed to the DOC with a life sentence as maximum security regardless of how they score on the tool. This is so even though the tool already incorporates the severity of offense.

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95. The result is that individuals who are juveniles at the time of their offense, who are more vulnerable and in greater need of supportive programming, are immediately and automatically housed with individuals DOC has deemed the most dangerous, in institutions with the highest security and the least programming.
96. Yet, because of their differences from adults, juveniles arrive at the DOC more susceptible to being assaulted and preyed upon, and with greater need for supportive programming and for opportunities that will enable them to be rehabilitated. Categorically assigning juveniles to maximum security regardless of any individualized determination unlawfully denies them a core component of a meaningful opportunity for release.
97. Moreover, once juveniles are able to progress to medium security, they are categorically and permanently barred from any further progression through the DOC system regardless of individual merit.
98. As noted above, DOC’s security classification instrument automatically scores juvenile lifers higher by virtue of their mandatory life sentences. The same is true for DOC’s re-classification instrument. But, no matter how a juvenile lifer scores on the tool, DOC’s policy builds in a mandatory override, such that the individual is categorically barred from moving below medium security regardless of his or her track

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record. In this way, DOC’s scheme reinforces the unattainability of opportunities for release for juvenile lifers. 99. Because virtually every aspect of programming is determined by an individual’s classification level, DOC’s mandatory override and prohibition against movement below medium security prevent juvenile lifers from progressing through DOC and demonstrating their maturity and rehabilitation regardless of individual merit. Similarly, juveniles are severely limited in their ability to demonstrate rehabilitation through the gradual earning of additional privileges and the ability to succeed in lower-security settings. 100. DOC’s categorical bar on progression beyond medium security for all juvenile lifers without regard for individual merit lacks penological justification. Unlike their adult counterparts, youth arrive in the DOC while still developing and mature in prison. They are in greater need of opportunities for education, and to develop employment histories, family ties, and a general track record of operating as responsible adults. 101. Until the mid-1990s, juveniles serving parole-eligible life sentences routinely received opportunities to demonstrate their rehabilitation by progressing through reduced security levels within the DOC. They were able to proceed to minimum and pre-release security classifications and thus participate in work-release and family leave

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programs. Through participation in these programs, they were able to

gradually re-establish family and community ties, maintain steady

employment, pay taxes, and even volunteer in the community, all

while being subjected to regular and random drug testing and other

supervision, including psychological evaluations.

102. Lifers’ demonstrated success in these settings and ability to access

programs only available at these statuses, including work release and

family leave, were a crucial factor in the assessment of their readiness

for parole by the Parole Commission. Parole records from that era

repeatedly reference the belief of commissioners that individuals

require “testing” in such settings, with increasing privileges and access

to society, to demonstrate their preparedness to reenter society.

103. Unlike Maryland’s prior policies, the current policies force Defendants

to make decisions about juvenile lifers’ suitability for release with far

less certainty about how they are likely to fare upon release. In this

way, Defendants are effectively discouraged from recommending or

approving parole for juvenile lifers as a result of DOC’s practices, and

juvenile lifers are deprived of critical opportunities to demonstrate

their rehabilitation.

III.

THE ORIGINS AND EFFECTS OF MARYLAND’S SYSTEM

OF DE FACTO LIFE WITHOUT PAROLE.

104. Prior to the mid-1990s, the Maryland Parole Commission regularly

recommended lifers for release on parole, and Maryland Governors

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were willing to approve these recommendations. Parole for lifers varied by Governor and was still subject to the political machinations of any particular Governor—such as when Governor William Donald Schaefer rejected every single one of the 29 parole recommendations made by the Maryland Parole Commission during his first term in office. Nonetheless, parole was available to lifers who demonstrated their rehabilitation, particularly through being successful as they progressed through increasingly less restrictive security levels of the DOC. 105. Maryland’s parole system changed dramatically in 1995, when thenGovernor Parris Glendening took office and announced that he was unwilling to grant parole to individuals serving life sentences, no matter their level of rehabilitation, no matter how many years they had served, no matter how young they might have been at time of offense. 106. Specifically, on September 21, 1995, during his first year in office, Governor Glendening called a press conference to announce that he was rejecting eight recommendations for parole by the Maryland Parole Commission. Henceforth, he announced, “life means life” and so he had ordered the MPC to stop sending recommendations to him for parole of any lifer, regardless of the youth of the offender at the time of his criminal act. Lomax, 356 Md. at 573 (“Governor Glendening

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announced that he would not approve parole for any inmates sentenced to life imprisonment unless they were very old or terminally ill. The Governor's announcement went on to state that he had ‘directed the Parole [Commission] not to even recommend-to not even send to [his] desk-a request for parole for murderers and rapists.’”) (parentheticals original). 107. During Governor Glendening’s tenure, the number of grants of parole to Maryland lifers, including juvenile lifers, plummeted to zero. It has remained near zero ever since. 108. Walter Lomax, one of the lifers denied parole at Governor Glendening’s 1995 press conference, challenged the “life means life” announcement in court, arguing that the Governor’s pronouncement amounted to an ex post facto change of his sentence. In rejecting this claim, the Maryland Court of Appeals stated that: “The Governor's statement … was simply an announcement of guidelines as to how the Governor would exercise the discretion which he has under the law. The Governor's announcement did not bind him, and he can employ different guidelines whenever he desires to do so.” Lomax, 356 Md. at 577. 109. This case thus established that Maryland Governors have unfettered discretion to grant or deny parole for any reason, without explanation, and without any opportunity for review.

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110. Nonetheless, the Court of Appeals ruled in Lomax that the MPC was obligated to continue reviewing parole applications and making recommendations, contrary to Glendening’s instruction. Id. at 579 (Noting State’s concession that the MPC “‘has a statutory obligation to submit to the Governor for approval the names of any inmates that the Commission finds suitable for parole, and that statutory obligation cannot be dismissed by the Governor; and ... the Governor cannot direct the Parole Commission to ignore a statutory responsibility....’”) (quoting State’s brief).
111. After being compelled to do so by the courts, the Maryland Parole Commission continued recommending reviewing lifers’ parole applications and issuing recommendations, but the fundamental character of its work changed as, year after year, Governor Glendening and his successors consistently denied all recommendations for release without explanation, regardless of the strength of an individual’s record, and regardless of the individual’s youth at the time of his or her offense.
112. The actions of Governor Glendening functionally abolished Maryland’s parole process for juvenile lifers and led to the entrenchment of practices that have operated to deny parole-eligible juvenile lifers any meaningful opportunity for rehabilitation and release through the terms of successor Governors to the present day.

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113. The practices of successor Governors further entrenched this policy. During the tenure of Governor Ehrlich, from 2003-2007, the Maryland Parole Commission all but ceased making recommendations for parole, shifting to a practice of making recommendations for commutation in a handful of cases.
114. Governor Martin O’Malley took office in 2007. During Governor O’Malley’s tenure, recommendations from the MPC regarding release for lifers, both parole and commutation, languished on his desk for years. Individuals like plaintiff Calvin McNeill earned the MPC’s recommendation that he be released based upon his model record, notwithstanding the denial to him of rehabilitation opportunities due to punitive DOC policies. But Mr. McNeill waited three years while the Governor failed to act on the MPC recommendation. Largely in response to the unfairness of the lifers in this situation, in 2011, the General Assembly enacted legislation to bring greater finality to this process by limiting the time the Governor had to consider parole requests to 180 days. When the legislation went into effect, Governor O’Malley rejected every one of the dozens of long-pending recommendations without any explanation, including that of Plaintiff Calvin McNeill.
115. Between 1995 and 2014 there were more than 2,000 individuals, juvenile and adult, serving parole-eligible life sentences in Maryland.

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116. The MPC recommended 24 lifers, both juveniles and adults, for parole. Every recommendation was rejected without any explanation to the individual denied parole.
117. During this two-decade period, no lifer, juvenile or adult, was paroled, as the below chart listing paroles by Governor shows.

Governor!
Glendening term)! Glendening term)! Ehrlich! O’Malley term)! O’Malley term)! Hogan!

Years Office! (1st 1995-1999!
(2nd 1999-2003!
2003-2007! (1st 2007-2011!
(2nd 2011-2015!
2015!

in Paroled! 0 paroled! 0 paroled! 0 paroled! 0 paroled! 0 paroled! 1 paroled!

One lifer, not a juvenile, was paroled in 2015. 118. By contrast, between 1969-1994, 181 lifers were paroled:

Governor!
Mandel (including two years serving Agnew’s unfinished term)! Hughes!

Years Office! 1969-1979!
1979-1987!

Schaefer term)!
Schaefer term)!

(1st 1987-1991! (2nd 1991-1995!

in Paroled!

92

lifers

paroled!

64

lifers

paroled !

1 paroled to

detainer!

24 paroled !

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IV. PLAINTIFFS’ RIGHTS HAVE BEEN VIOLATED AND THEY HAVE SUFFERED GRAVE HARMS AS A RESULT OF MARYLAND’S SYSTEM OF DE FACTO LIFE WITHOUT PAROLE.
A. Maryland Restorative Justice Initiative 119. As a result of the policies and practices of Defendants, and illustrated
by the Defendants’ failure to parole any juvenile lifer for more than 20 years, MRJI members – including more than 100 juvenile lifers and their families -- have consistently been denied any meaningful opportunity for release. In many instances, they have come to regard parole proceedings as futile and the promise of parole as completely illusory. No matter how well they behave, how consistently they demonstrate their trustworthiness, or how much they mature, they can never progress below medium security to lesser classifications that will allow them to demonstrate their readiness for release. Similarly, MRJI members who receive psychological evaluations are measured using risk assessment instruments that penalize them for their youthfulness at the time of their offense and totally fail to consider their institutional history and track record since incarceration. As such, MRJI juvenile lifer members and their families have suffered, and continue to suffer, violation of their rights under the Eighth

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Amendment to the U.S. Constitution and Article 25 of the Maryland Declaration of Rights. B. Plaintiff Calvin McNeill 120. Calvin McNeill was sentenced to life with parole under Maryland’s mandatory sentencing scheme and without adequate consideration of his youth status, for his role in a fatal robbery of a dice game that occurred in 1981, the day he turned 17 years old. 121. Mr. McNeill is now 51 years old. He has spent 35 years, more than two thirds of his lifetime, incarcerated for this offense. 122. Mr. McNeill was sentenced to life in prison under Maryland’s mandatory sentencing scheme for felony murder. Nothing in Mr. McNeill’s record suggests, nor was any finding ever made, that his crime reflected that he was among the “rarest juvenile[s] whose crime[s] reflects permanent incorrigibility.” 123. In 1982, when Mr. McNeill was sentenced, the prevailing understanding and practice was that lifers were regularly and frequently paroled. Indeed, nearly 100 lifers had been paroled in the preceding ten years. 124. Mr. McNeill has an exceptional institutional record in the DOC. He has taken advantage of every program available to him, earned positions of trust in employment, and taken leadership roles in programs to promote alternatives to violence within and outside DOC.

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Mr. McNeill has even earned recognition from correctional officers and administrators who submitted letters of support on his behalf, including a commendation for helping to save someone’s life. He has had only one infraction in the last 25 years, and that an exceedingly minor one. 125. In recognition of this strong record, in 2008, the Maryland Parole Commission recommended Mr. McNeill for commutation. 126. Three years later, in 2011, Governor O’Malley rejected this recommendation without explanation. Mr. McNeill does not know on what basis he was denied. His case was among dozens of others that were rejected by Governor O’Malley without comment that year. 127. The Maryland Parole Commission scheduled Mr. McNeill’s next parole hearing for 2015, seven years after he was recommended for commutation. 128. At Mr. McNeill’s 6th parole hearing in 2015, the two commissioners who met with him told him they would be recommending him for a risk assessment. However, there is a lengthy waiting list for assessment at Patuxent Institution and as of the filing of suit Mr. McNeill has not been transferred for the assessment. 129. As was the case previously, even if the MPC again recommends Mr. McNeill for release, whether on parole or for a commutation, the

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governor who receives such a recommendation can reject it for any
reason without explanation and without any opportunity for review.
130. When Mr. McNeill first arrived in the DOC, he had no prior record
except for one juvenile offense. Yet, because he was serving a life
sentence, he was automatically designated as maximum security and
sent to the Maryland Penitentiary in spite of his young age.
131. Year after year, DOC classification counselors assessing Mr. McNeill’s
readiness for parole have noted his “excellent” record and observed
that the only issue hindering his release is the State’s policies
governing lifers. For nearly 20 years, Mr. McNeill has been identified
as a strong candidate for progression to lesser security but has been
denied this opportunity solely because of his status as a lifer and
without regard for his youth at the time of offense.
132. For example, as early as 1997, nearly 20 years ago, Mr. McNeill’s
classification counselor wrote:
Division of Correction policy does not allow the inmate to progress to lesser security; however, he could be considered for progression when/if the ‘lifer policy’ changes. Since his last parole hearing, the inmate received his G.E.D. He has received superior ratings from his State Use Industries supervisors for the past three years. He has been a facilitator for Alternatives to Violence program. If institutional behaviors are indicative of behaviors on parole, this inmate would be a very good candidate for parole should current policy change.

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In 2000, a classification counselor again noted that Mr. McNeill had ‘maintained an excellent adjustment and work history; however, [h]is [life] sentence hinders his progress.” 133. Every year, DOC conducts a security reclassification assessment for Mr. McNeill. The classification tool relied upon by DOC has two sections; one section measuring a “security” score, and a second section measuring an “institutional” score. DOC does not complete the tool for individuals serving life sentences and Mr. McNeill’s security classification instruments often reflect this practice. Rather, classification counselors check boxes marking Mr. McNeill as categorically prohibited from moving below medium security because he is serving a life sentence. 134. Upon information and belief, were DOC to properly complete and score Mr. McNeill, the classification instrument would demonstrate that, due to his strong institutional record and steady employment within DOC, he can safely be moved to a lesser security level, where he would be able to participate in work release and family leave programs. The mandatory overrides deny Mr. McNeill the ability to make this progression. 135. Mr. McNeill has been denied and continues to be denied a meaningful opportunity for release, in that 1) he is unable to move below medium security regardless of how impeccable an institutional record he

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achieves, and thus he is barred from developing skills that allow him to demonstrate his rehabilitation; 2) he is denied any explanation for what additional steps he must take to be recommended for parole; 3) he has been discriminated against with respect to his opportunities for rehabilitation and release by Defendants’ use of risk assessment tools that hold his youth at time of offense against him; 4) he is subjected to a parole system that operates no differently than a system of executive clemency; and 5) he is subjected to parole practices that penalize him for his young age at the time of his offense. C. Kenneth Tucker 136. Mr. Tucker was sentenced to life with parole in 1974 at age 17 under Maryland’s mandatory sentencing scheme and without adequate consideration of his youth status, for participating in a robbery-murder with another teenager. During the robbery, Mr. Tucker’s co-defendant killed the victim. Mr. Tucker has now been incarcerated for 42 years, nearly three quarters of his life. He is 59 years old. 137. Because the case involved a homicide that occurred during the course of a robbery, Mr. Tucker was charged with felony murder and faced a mandatory penalty of life in prison. 138. Mr. Tucker pled guilty to the offense and accepted a paroleable life sentence based on the understanding that such a sentence meant that he would have a realistic opportunity for release when he reached

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parole eligibility. At the time, Mr. Tucker had known of other individuals who had received life sentences and been paroled back to the community. 139. Mr. Tucker began turning his life around almost immediately upon his incarceration, earning his high school equivalency in 1975, an associate’s degree in 1989, and a bachelor’s degree in psychology in 1994. He has obtained certification or training in several professions, including metal and wood work apprenticeships, clerical work, and food service sanitation. He is currently an observation aide in JCI’s hospital, where he provides consolation and coping strategies to terminally ill and mentally distressed peers. He is a member of the JCI Scholars program and volunteers weekly as a mentor for other men. 140. Prior to the 1990s, Mr. Tucker was on track to progressing through DOC and earning his release. In 1987, for example, nearly 30 years ago, case management recommended his transfer to preferred trailer housing and medium security because of his good institutional adjustment and infraction-free record, while his 1989 security reclassification instrument noted that he was an “excellent worker” with an “AA degree.” In a detailed statement, the commissioners in his first parole hearing in 1987 wrote: “The Parole Commission Panel would like to see the subject progress through the system and finally

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receive an extensive period of work release before a favorable recommendation could be offered.” At his second hearing in 1990, the Commission again reiterated: “Mr. Tucker is in C-3 medium security and is not eligible for C-3 minimum until 5-91. Given the aforementioned, and the nature of the crime, Mr. Tucker was advised by the Commission Panel to remain infraction free and to progress to minimum security, and work release status.” Prior to his third hearing in 1992, his DOC classification counselor noted in a summary prepared for the parole commission that he would become eligible for minimum and pre-release security upon a recommendation from the Parole Commission. At that hearing, the Commissioners wrote: “The Panel notes Mr. Tucker’s good institutional adjustment and finds that he needs the benefit of gradual reentry into the community and a period of work release testing. The Panel will rehear Mr. Tucker in December 1993. The Panel explicitly recommends work release.” 141. In 1993, Maryland suspended its work release program and returned all lifers to medium security. That December, Mr. Tucker received his fourth parole hearing. On the pre-printed form that the commissioners had begun using, the hearing officers wrote “Needs to maintain good adjustment and participate in those programs available.” Below that, in “Commissioner’s remarks,” it was further noted: “Policy for [illegible], work release for life cases needs resolution before

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progression can be made.” Mr. Tucker was set for his next parole hearing in 1995. In June 1995, the Commissioners who held his parole hearing scheduled him for a rehearing the following year, noting “Awaiting Lifer Policy.” In addition, despite confirming Mr. Tucker’s eligibility for progression past medium security on his 1994 security reclassification instrument, it was noted that no change could be made because “current lifer status is on hold.” 142. In September 1995, Governor Glendening announced that he would not parole any lifer. In light of the Governor’s statements and actions, Mr. Tucker declined his parole hearing in 1996, believing the process was futile. He did not have any parole hearing again for nearly 20 years, until 2014, as he did not see much point to reinstating hearings when no lifers were being paroled. In 2014, at the urging of his case manager, he requested a parole hearing. 143. At Mr. Tucker’s 6th parole hearing in 2014, the Commissioners who heard his case recommended that he progress to the next step, which is the risk assessment at Patuxent. After the evaluation was completed, the parole commission denied parole and set his next hearing for 2017. The Commissioners noted “Given results of recent psych evaluation, a 1/2017 rehear would be more appropriate in this case.” No additional information was provided about which aspects of the assessment caused concern nor what he might do to demonstrate his readiness at

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his next parole hearing, and Mr. Tucker received no reply to a letter requesting an explanation. 144. Upon information and belief, the primary basis for the Commissioners’ refusal of parole was a section of the evaluation called “Assessment of Risk.” The report’s author noted that he relied solely upon two actuarial tools, both of which rely exclusively on “static” factors, to assess risk, and do not take into account Mr. Tucker’s maturity, rehabilitation or institutional record. Furthermore, the “static” factors upon which Mr. Tucker was assessed were all based on who he was as age 17, penalizing him for his youth, such as being unmarried at the time of the offense. 145. Mr. Tucker has been denied and continues to be denied a meaningful opportunity for release, in that 1) he is unable to move below medium security regardless of how impeccable an institutional record he achieves, and thus he is barred from developing skills that allow him to demonstrate his rehabilitation; 2) he is denied any explanation for what additional steps he must take to be recommended for parole; 3) he has been discriminated against with respect to his opportunities for rehabilitation and release by Defendants’ use of risk assessment tools that hold his youth at time of offense against him; 4) he is subjected to a parole system that operates no differently than a system of executive

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clemency; and 5) he is subjected to parole practices that penalize him for his young age at the time of his offense. D. Nathaniel Foster 146. In 1983, at 17 years old, Nathaniel Foster was involved in a botched robbery attempt along with his co-defendant, who was eight years his senior and is the father of his sister’s children. During the course of the robbery, the victim was killed. Mr. Foster had no prior record. 147. Because the case involved a homicide that occurred during a robbery, Mr. Foster was charged with first-degree murder and subjected to a mandatory penalty of life imprisonment without adequate consideration of his youth status. 148. There is nothing in Mr. Foster’s record to suggest, nor was any finding ever made, that he was among those rare juveniles whose crimes reflect irreparable corruption. Rather, at the time of the incident, Mr. Foster had graduated Southwestern High School where he had been an honor student. He was working as a janitor and had planned to attend Capitol Institute of Technology in Kingston, Maryland on scholarship. At Mr. Foster’s sentencing, both his attorney and the judge stated that the judge had no “real latitude…in disposing of the case.” 149. Mr. Foster has now been incarcerated for more than three decades—32 years.

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150. Mr. Foster has an exemplary institutional record. He has had only two minor infractions in the last three decades. He has not had an infraction of any kind in the last 16 years, and has never had a violent infraction.
151. During his incarceration Nathaniel has pursued his education, earning a place on the Dean’s List for his high grades while attending Coppin State University for Criminal Justice. He was unable to finish this degree before funding for the program was cut, just twenty-four credits short of completion.
152. He has held a number of jobs while incarcerated including working in the canteen and cooking for the Officer’s Dining Room. Currently he works for the Maryland Correctional Enterprise in the sheet metal shop where he is a lead office clerk, working directly under the Plant Manager. He has been entrusted with extraordinary responsibilities in these jobs.
153. For the last year, Mr. Foster has also served as a volunteer helping to care for men who are gravely and terminally ill at the prison hospital. He is a religious leader with Little Flock, a Seventh Day Adventist community.
154. He has family members who support his return to the community. 155. Mr. Foster has had six parole hearings in the last twenty years, in
1995, 2000, 2005, 2008, 2011 and 2013.

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156. Mr. Foster has remained at medium security for the last twenty-two years, since 1994, despite a 1995 Maryland Parole Commission recommendation that he progress to lesser security as well as significant progress and an institutional record that demonstrates that he could safely progress to a lesser security classification. Upon information and belief, if DOC were to properly score Mr. Foster, DOC’s own security classification instrument would score him for a reduced security classification. Because of DOC’s mandatory override provisions for all lifers, Mr. Foster is unable to progress to a lesser security level and demonstrate his readiness for release.
157. In January 1995, Mr. Foster had his first parole hearing. He was a medium security inmate at that time. The only notation made by the parole commissioners who heard his case was to check a box under “Re-Hearing Recommendations” that was marked “Progress to Lesser Security” with a handwritten annotation “If possible.” The commissioners scheduled his next hearing for five years later, in 2000.
158. At Mr. Foster’s 2000 parole hearing, in indicating the rationale for their decision, the Commissioners marked “other” and wrote “Needs to serve more time for the crime.” No mention was made of Mr. Foster’s status as a juvenile at the time of the offense. His next hearing was scheduled for five years later.

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Case 1:16-cv-01021-ELH Document 1 Filed 04/06/16 Page 52 of 61

159. In 2005, at Mr. Foster’s third parole hearing, under Re-Hearing Recommendations the Commissioners checked “Other” and wrote “No infraction and any available programming.” At that hearing, Mr. Foster was told “off the record” that the Governor was not going to sign any lifer parole papers and therefore he should just continue to do good. They set his next hearing for three years later.
160. Pursuant to Mr. Foster’s request for reconsideration of the Parole Commission’s decision, on August 15, 2007, Defendant Blumberg indicated that his file had been reviewed and the Commission found no basis to change its decision.
161. At Mr. Foster’s fourth parole hearing in 2008, at which point he had served 25 years, the commissioners denied parole and scheduled his next hearing for three years later, in 2011. After noting Mr. Foster’s “good institutional record,” the Commissioners indicated they were rejecting parole due to the nature of the crime. They indicated he should participate in vocational training as available and avoid any infractions.
162. A 2010 case plan completed by Mr. Foster’s case manager noted among other things that Mr. Foster had not had any infractions in a decade. It also stated, under supervision strategy: “Continue current excellent behavior and programming. On [waiting list] for more groups, which he will take when assigned.”

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Case 1:16-cv-01021-ELH Document 1 Filed 04/06/16 Page 53 of 61

163. Mr. Foster’s fifth parole hearing was in 2011. He was again denied parole. On his form, the Commissioners noted Mr. Foster’s employment, participation in groups, and home plan, but stated without any explanation that they were unwilling to recommend parole.
164. By 2013, Mr. Foster had spent three decades incarcerated. At his sixth parole hearing that year, the commissioners wrote: “Offender presented well, has excellent job evaluations and mentors younger prisoners. After considering all factors, a rehear for 1/2015 is suitable given nature & circumstances of offense.” His case was set for a hearing in January 2015.
165. At the beginning of 2015, disheartened by his sense of futility in the parole process as he was repeatedly recognized for having an excellent record but then denied release due to the offense itself, without regard for his juvenile status, Mr. Foster declined a parole hearing. Despite this loss of confidence in the parole process, with it being the only means available for Mr. Foster to continue to demonstrate his readiness for release, he reconsidered and reinstated his participation in the parole process. At his seventh parole hearing in 2016, he was advised that he will be sent to Patuxent for a psychological evaluation.
166. Mr. Foster has been denied and continues to be denied a meaningful opportunity for release, in that 1) he is unable to move below medium

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Case 1:16-cv-01021-ELH Document 1 Filed 04/06/16 Page 54 of 61

security regardless of how impeccable an institutional record he achieves, and thus he is barred from developing skills that allow him to demonstrate his rehabilitation; 2) he is denied any explanation for what additional steps he must take to be recommended for parole; 3) he has been discriminated against with respect to his opportunities for rehabilitation and release by Defendants’ use of risk assessment tools that hold his youth at time of offense against him; 4) he is subjected to a parole system that operates no differently than a system of executive clemency; and 5) he is subjected to parole practices that penalize him for his young age at the time of his offense.
CAUSES OF ACTION Count One
Violation of the Eighth Amendment Prohibition Against Cruel and Unusual Punishment and 42 U.S.C. § 1983 (All Plaintiffs Against All Defendants)
167. Plaintiffs reallege paragraphs 1 to 166 and incorporate them as if fully stated herein.
168. The Eighth Amendment forbids a statutory scheme that mandates life imprisonment for juveniles or permits life sentences for juveniles in non-homicide cases without adequate regard for their status as minors, and then denies them a realistic and meaningful opportunity for release upon demonstrated rehabilitation. A meaningful opportunity for release includes the opportunity to demonstrate rehabilitation.

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Case 1:16-cv-01021-ELH Document 1 Filed 04/06/16 Page 55 of 61

169. Defendants operate a parole scheme that is indistinguishable from a system of ad hoc executive clemency in which grants of release are exceptionally rare, are governed by no substantive or enforceable standards, and are masked from view of those affected by assertions of executive privilege.
170. Maryland’s system of standardless, ad hoc executive clemency, as applied to Plaintiffs, has not afforded them a meaningful and realistic opportunity for release upon demonstrated rehabilitation, in violation of the Eighth Amendment.
171. Moreover, the Maryland Parole Commission’s application here of risk assessment tools that discriminate against youth has denied Plaintiffs a meaningful and realistic opportunity for release upon their showing of rehabilitation, in violation of the Eighth Amendment.
172. The DOC’s practice of automatically classifying all lifers, including juvenile lifers such as the Plaintiffs, at maximum security and then prohibiting them from moving below medium security denies the Plaintiffs critical rehabilitative opportunities that are essential to their ability to demonstrate maturity and rehabilitation.
173. Plaintiffs McNeill, Foster, and Tucker and Plaintiff MRJI and its members have been injured by the Defendants’ policies and practices by being denied their rights to meaningful opportunity for release from imprisonment notwithstanding their youth at the time of their offense

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Case 1:16-cv-01021-ELH Document 1 Filed 04/06/16 Page 56 of 61
and despite their demonstration of rehabilitation, in violation of the Eighth Amendment, giving rise to their claims for relief under 42 U.S.C. §1983.

Count Two Violation of Article 25, Md. Decl. of Rights Prohibition Against Cruel
or Unusual Punishment (All Plaintiffs Against all Defendants) 174. Plaintiffs reallege paragraphs 1 to 166 and incorporate them as if fully stated herein. 175. Article 25 of the Maryland Declaration of Rights forbids a statutory scheme that mandates life imprisonment for juveniles or permits life sentences for juveniles in non-homicide cases without adequate regard for their status as minors, and then denies them a realistic and meaningful opportunity for release upon demonstrated rehabilitation. A meaningful opportunity for release includes the opportunity to demonstrate rehabilitation. 176. Defendants operate a parole scheme that is indistinguishable from a system of ad hoc executive clemency in which grants of release are exceptionally rare, are governed by no substantive, enforceable standards, and are masked from view of those affected by assertions of executive privilege. 177. Maryland’s system of standardless, ad hoc executive clemency, as applied to plaintiffs, has not afforded them a meaningful and realistic

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Case 1:16-cv-01021-ELH Document 1 Filed 04/06/16 Page 57 of 61

opportunity for release upon demonstrated rehabilitation, in violation of Article 25. 178. Moreover, the Maryland Parole Commission’s application of risk assessment tools that discriminate against youth has denied Plaintiffs a meaningful and realistic opportunity for release upon their showing of rehabilitation, in violation of Article 25. 179. The DOC’s practice of automatically classifying all lifers at maximum security and then prohibiting lifers from moving below medium security denies juveniles critical rehabilitative opportunities that are essential to their ability to demonstrate maturity and rehabilitation. 180. Plaintiffs McNeill, Foster, and Tucker and Plaintiff MRJI and its members have been injured by the Defendants’ policies and practices by being denied their rights to meaningful opportunity for release from imprisonment notwithstanding their youth at the time of their offenses and despite their demonstration of rehabilitation, in violation of the Eighth Amendment to the U.S. Constitution, and Article 25 of the Maryland Declaration of Rights.
Count 3 For Declaratory Judgment that Maryland Code, Criminal Law
Article § 2-201(b) Is Unconstitutional (All Plaintiffs Against All Defendants)

181. Plaintiffs reallege paragraphs 1 to 166 and incorporate them as if fully stated herein.

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Case 1:16-cv-01021-ELH Document 1 Filed 04/06/16 Page 58 of 61
182. Maryland Code, Criminal Law Article § 2-201(b) mandates that judges impose a sentence of life imprisonment for individuals convicted of murder irrespective of any consideration of the youth status of the offender.
183. The Eighth Amendment to the U. S. Constitution requires youth status to be considered and a finding of “irreparable corruption” before youth may be sentenced to life imprisonment without a meaningful opportunity for release upon rehabilitation.
184. Section 2-201(b) violates the prohibition against cruel and unusual punishment under Eighth Amendment to the United States Constitution.
185. Plaintiffs McNeill, Foster, and Tucker and Plaintiff MRJI and its members have been injured by sentencing pursuant to Section 2-201(b) by being denied adequate consideration of their youth before being sentenced to life imprisonment without a meaningful opportunity for release upon their demonstrated rehabilitation, in violation of the Eighth Amendment to the U.S. Constitution, and Article 25 of the Maryland Declaration of Rights.

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PRAYER FOR RELIEF WHEREFORE, Plaintiffs request that this Court
(a) Declare, pursuant to 28 U.S.C. §§ 2201-2202, that Defendants have operated, and continue operate, a parole scheme that denies individuals, such as the Plaintiffs, who are serving parole-eligible life sentences for offenses committed as juveniles, a meaningful and realistic opportunity for release, in violation of the prohibition against cruel and unusual punishment in the Eighth Amendment to the U.S. Constitution and the prohibition against cruel or unusual punishment in Article 25 of the Maryland Constitution;
(b) Declare, pursuant to 28 U.S.C. §§ 2201-2202, that Plaintiffs are serving de facto life without parole sentences pursuant to which they have been afforded no realistic or meaningful opportunity for release, in violation of the prohibition against cruel and unusual punishment in the Eighth Amendment to the U.S. Constitution and the prohibition against cruel or unusual punishment in Article 25 of the Maryland Constitution;
(c) Declare, pursuant to 28 U.S.C. §§ 2201-2202, that Maryland Code, Correctional Services Article § 7-301(d)(4), granting the Governor the exclusive authority to parole an individual serving a parole-eligible life sentence, is unconstitutional as applied to individuals, including the Plaintiffs, who were juveniles at the time of their offenses;

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(d) Declare, pursuant to 28 U.S.C. §§ 2201-2202, that the Defendants’ reliance upon risk assessment tools that discriminate against those who were juveniles at the time of offense to assess opportunities for release has denied Plaintiffs a meaningful and realistic opportunity for release upon their showing of rehabilitation, in violation of the Eighth Amendment;
(e) Declare, pursuant to 28 U.S.C. §§ 2201-2202, that, at least since 1995, Defendants have denied juvenile lifers, including the Plaintiffs, a meaningful and realistic opportunity for release by denying them access to critical rehabilitative opportunities through policies and practices automatically classifying them as maximum security and prohibiting them from progressing to security levels below medium regardless of individual merit, in violation of the Eighth Amendment prohibition against cruel and unusual punishment of the U.S. Constitution and the prohibition against cruel or unusual punishment in Article 25 of the Maryland Constitution;
(f) Declare, pursuant to 28 U.S.C. §§ 2201-2202, that Md. Criminal Law Code Ann. § 2-201(b) is unconstitutional because it mandates imposition of life sentences that deny youth a meaningful opportunity for release without consideration of the youth status of the offender.
(g) Enjoin Defendants immediately to discontinue these practices and to take remedial steps to address their past illegal conduct, by granting

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Plaintiffs, and others represented by the Maryland Restorative Justice Initiative, a meaningful and realistic opportunity to demonstrate their readiness for release; (h) Award Plaintiffs their attorneys’ fees and costs incurred in pursuing this action, as provided in 42 U.S.C. § 1988; and (i) Grant such other and further relief as the Court may deem just and proper;

Dated: April 6, 2016

Respectfully Submitted,
/s/ ________________ Barry Fleishman (D. Md. Bar No. 15869) James E. Brown (Pro Hac pending) KILPATRICK TOWNSEND STOCKTON LLP 607 14th Street, N.W. Suite 900 Washington, DC 20005 TEL: 202.508.5835 FAX: 202.585.0003 EMAIL: bfleishman@kilpatricktownsend.com, jabrown@kilpatricktownsend.com
/s/ ________________ Deborah A. Jeon (D. Md. Bar No.06905) Sonia Kumar (D. Md. Bar No. 07196) ACLU OF MARYLAND 3600 Clipper Mill Road, Suite 350 Baltimore, MD 21211 TEL: 410-889-8550 x 103 FAX: 410-366-7838 EMAIL: jeon@aclu-md.org, kumar@aclumd.org

Counsel for Plaintiffs

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JS 44 (Rev. 11/15)

Case 1:16-cv-01021-CEILVHILDCocOumVeEnRt 1S-1HEFEileTd 04/06/16 Page 1 of 2

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS Maryland Restorative Justice Initiative; Calvin McNeill; Nathaniel Foster; Kenneth Tucker

DEFENDANTS Larry Hogan; David Blumberg; Stephen Moyer; Wayne Webb

(b) County of Residence of First Listed Plaintiff Baltimore City
(EXCEPT IN U.S. PLAINTIFF CASES)

County of Residence of First Listed Defendant Anne Arundel
(IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED.

(c) Attorneys (Firm Name, Address, and Telephone Number) Barry Fleishman; Kilpatrick Townsend; 607 14th St. NW, Ste 900; Washington, DC 20005; 202 508-5835; Sonia Kumar; ACLU of MD; 3600 Clipper Mill Rd., Ste 350; Baltimore, MD 21211; 410 889-8550

Attorneys (If Known)

II. BASIS OF JURISDICTION (Place an “X” in One Box Only)

’ 1 U.S. Government Plaintiff

’ 3 Federal Question (U.S. Government Not a Party)

III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff

(For Diversity Cases Only)

and One Box for Defendant)

PTF DEF

PTF DEF

Citizen of This State

’ 1 ’ 1 Incorporated or Principal Place

’ 4 ’4

of Business In This State

’ 2 U.S. Government Defendant

’ 4 Diversity (Indicate Citizenship of Parties in Item III)

Citizen of Another State

’ 2 ’ 2 Incorporated and Principal Place of Business In Another State

’ 5 ’5

Citizen or Subject of a Foreign Country

’ 3 ’ 3 Foreign Nation

IV. NATURE OF SUIT (Place an “X” in One Box Only)

CONTRACT

TORTS

FORFEITURE/PENALTY

BANKRUPTCY

’ 110 Insurance

PERSONAL INJURY

PERSONAL INJURY ’ 625 Drug Related Seizure

’ 422 Appeal 28 USC 158

’ 120 Marine

’ 310 Airplane

’ 365 Personal Injury -

of Property 21 USC 881 ’ 423 Withdrawal

’ 130 Miller Act

’ 315 Airplane Product

Product Liability

’ 690 Other

28 USC 157

’ 140 Negotiable Instrument

Liability

’ 367 Health Care/

’ 150 Recovery of Overpayment ’ 320 Assault, Libel &

& Enforcement of Judgment

Slander

Pharmaceutical Personal Injury

PROPERTY RIGHTS ’ 820 Copyrights

’ 151 Medicare Act

’ 330 Federal Employers’

Product Liability

’ 830 Patent

’ 152 Recovery of Defaulted

Liability

’ 368 Asbestos Personal

’ 840 Trademark

Student Loans

’ 340 Marine

Injury Product

(Excludes Veterans)

’ 345 Marine Product

’ 153 Recovery of Overpayment

Liability

of Veteran’s Benefits

’ 350 Motor Vehicle

Liability

LABOR

PERSONAL PROPERTY ’ 710 Fair Labor Standards

’ 370 Other Fraud

Act

SOCIAL SECURITY ’ 861 HIA (1395ff) ’ 862 Black Lung (923)

’ 160 Stockholders’ Suits

’ 355 Motor Vehicle

’ 371 Truth in Lending

’ 720 Labor/Management

’ 863 DIWC/DIWW (405(g))

’ 190 Other Contract

Product Liability

’ 380 Other Personal

Relations

’ 864 SSID Title XVI

’ 195 Contract Product Liability ’ 360 Other Personal

’ 196 Franchise

Injury

Property Damage ’ 385 Property Damage

’ 740 Railway Labor Act ’ 751 Family and Medical

’ 865 RSI (405(g))

’ 362 Personal Injury -

Product Liability

Leave Act

Medical Malpractice

’ 790 Other Labor Litigation

REAL PROPERTY

CIVIL RIGHTS

PRISONER PETITIONS ’ 791 Employee Retirement

FEDERAL TAX SUITS

’ 210 Land Condemnation

’ 440 Other Civil Rights

Habeas Corpus:

Income Security Act

’ 870 Taxes (U.S. Plaintiff

’ 220 Foreclosure

’ 441 Voting

’ 463 Alien Detainee

or Defendant)

’ 230 Rent Lease & Ejectment ’ 442 Employment

’ 510 Motions to Vacate

’ 871 IRS—Third Party

’ 240 Torts to Land

’ 443 Housing/

Sentence

26 USC 7609

’ 245 Tort Product Liability ’ 290 All Other Real Property

Accommodations

’ 530 General

’ 445 Amer. w/Disabilities - ’ 535 Death Penalty

IMMIGRATION

Employment

Other:

’ 446 Amer. w/Disabilities - ’ 540 Mandamus & Other

Other

’ 550 Civil Rights

’ 462 Naturalization Application ’ 465 Other Immigration
Actions

’ 448 Education

’ 555 Prison Condition

’ 560 Civil Detainee -

Conditions of

Confinement

’ 6 ’6
OTHER STATUTES
’ 375 False Claims Act ’ 376 Qui Tam (31 USC
3729(a)) ’ 400 State Reapportionment ’ 410 Antitrust ’ 430 Banks and Banking ’ 450 Commerce ’ 460 Deportation ’ 470 Racketeer Influenced and
Corrupt Organizations ’ 480 Consumer Credit ’ 490 Cable/Sat TV ’ 850 Securities/Commodities/
Exchange ’ 890 Other Statutory Actions ’ 891 Agricultural Acts ’ 893 Environmental Matters ’ 895 Freedom of Information
Act ’ 896 Arbitration ’ 899 Administrative Procedure
Act/Review or Appeal of Agency Decision ’ 950 Constitutionality of State Statutes

V. ORIGIN (Place an “X” in One Box Only)

’ 1 Original

’ 2 Removed from

Proceeding

State Court

’ 3 Remanded from Appellate Court

’ 4 Reinstated or ’ 5 Transferred from ’ 6 Multidistrict

Reopened

Another District

Litigation

(specify)

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
42 U.S.C. 1983 VI. CAUSE OF ACTION Brief description of cause:
Declaratory judgment that Maryland sentencing and parole as applied to juvenile offenders is unconstitutional

VII. REQUESTED IN COMPLAINT:

’ CHECK IF THIS IS A CLASS ACTION
UNDER RULE 23, F.R.Cv.P.

DEMAND $
0

CHECK YES only if demanded in complaint: JURY DEMAND: ’ Yes ’ No

VIII. RELATED CASE(S)

IF ANY

(See instructions):
JUDGE

DOCKET NUMBER

DATE
April 6, 2016

SIGNATURE OF ATTORNEY OF RECORD

FOR OFFICE USE ONLY

RECEIPT #

AMOUNT

APPLYING IFP

JUDGE

MAG. JUDGE

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JS 44 Reverse (Rev. 11/15)
Case 1:16-cv-01021-ELH Document 1-1 Filed 04/06/16 Page 2 of 2
INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44
Authority For Civil Cover Sheet
The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed. The attorney filing a case should complete the form as follows:
I.(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, giving both name and title.
(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)
(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting in this section "(see attachment)".
II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X" in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below. United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here. United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box. Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and box 1 or 2 should be marked. Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity cases.)
III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this section for each principal party.
IV. Nature of Suit. Place an "X" in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is sufficient to enable the deputy clerk or the statistical clerk(s) in the Administrative Office to determine the nature of suit. If the cause fits more than one nature of suit, select the most definitive.
V. Origin. Place an "X" in one of the six boxes. Original Proceedings. (1) Cases which originate in the United States district courts. Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441. When the petition for removal is granted, check this box. Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date. Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date. Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or multidistrict litigation transfers. Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. When this box is checked, do not check (5) above.
VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service
VII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P. Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction. Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.
VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket numbers and the corresponding judge names for such cases.
Date and Attorney Signature. Date and sign the civil cover sheet.

Case 1:16-cv-01021-ELH Document 1-2 Filed 04/06/16 Page 1 of 2
AO 440 (Rev. 06/12) Summons in a Civil Action
UNITED STATES DISTRICT COURT
for the
________D_is_tDricisttorifcMt oafr_y_la_n_d______

Maryland Restorative Justice Initiative; Calvin McNeill; Nathaniel Foster; Kenneth Tucker
Plaintiff(s)
v. Larry Hogan; David Blumberg; Stephen Moyer;
Wayne Webb
Defendant(s)

)

)

)

)

)

) )

Civil Action No.

)

)

)

)

)

SUMMONS IN A CIVIL ACTION To: (Defendant’s name and address) Governor Larry Hogan; 100 State Circle; Annapolis, Maryland 21401.

A lawsuit has been filed against you.

Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you

are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.

P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of

the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,

whose name and address are:

Barry Fleishman; Kilpatrick Townsend & Stockton LLP; 607 14th St. NW, Suite 900; Washington, D.C. 20005.

Sonia Kumar; ACLU of Maryland; 3600 Clipper Mill Road, Suite 350; Baltimore, Maryland 21211.

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.

Date:

CLERK OF COURT
Signature of Clerk or Deputy Clerk

Case 1:16-cv-01021-ELH Document 1-2 Filed 04/06/16 Page 2 of 2
AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)
Civil Action No.

PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))

This summons for (name of individual and title, if any)

was received by me on (date)

.

’ I personally served the summons on the individual at (place)

on (date)

; or

’ I left the summons at the individual’s residence or usual place of abode with (name)

, a person of suitable age and discretion who resides there,

on (date)

, and mailed a copy to the individual’s last known address; or

’ I served the summons on (name of individual) designated by law to accept service of process on behalf of (name of organization)
on (date)

, who is ; or

’ I returned the summons unexecuted because

; or

’ Other (specify): .

My fees are $

for travel and $

for services, for a total of $

0

.

I declare under penalty of perjury that this information is true.

Date:

Server’s signature Printed name and title

Additional information regarding attempted service, etc:

Server’s address

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Case 1:16-cv-01021-ELH Document 1-3 Filed 04/06/16 Page 1 of 2
AO 440 (Rev. 06/12) Summons in a Civil Action
UNITED STATES DISTRICT COURT
for the
________D_is_tDricisttorifcMt oafr_y_la_n_d______

Maryland Restorative Justice Initiative; Calvin McNeill; Nathaniel Foster; Kenneth Tucker
Plaintiff(s)
v. Larry Hogan; David Blumberg; Stephen Moyer;
Wayne Webb
Defendant(s)

)

)

)

)

)

) )

Civil Action No.

)

)

)

)

)

SUMMONS IN A CIVIL ACTION To: (Defendant’s name and address) Governor Larry Hogan; 100 State Circle; Annapolis, Maryland 21401.

A lawsuit has been filed against you.

Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you

are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.

P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of

the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,

whose name and address are:

Barry Fleishman; Kilpatrick Townsend & Stockton LLP; 607 14th St. NW, Suite 900; Washington, D.C. 20005.

Sonia Kumar; ACLU of Maryland; 3600 Clipper Mill Road, Suite 350; Baltimore, Maryland 21211.

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.

Date:

CLERK OF COURT
Signature of Clerk or Deputy Clerk

Case 1:16-cv-01021-ELH Document 1-3 Filed 04/06/16 Page 2 of 2
AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)
Civil Action No.

PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))

This summons for (name of individual and title, if any)

was received by me on (date)

.

’ I personally served the summons on the individual at (place)

on (date)

; or

’ I left the summons at the individual’s residence or usual place of abode with (name)

, a person of suitable age and discretion who resides there,

on (date)

, and mailed a copy to the individual’s last known address; or

’ I served the summons on (name of individual) designated by law to accept service of process on behalf of (name of organization)
on (date)

, who is ; or

’ I returned the summons unexecuted because

; or

’ Other (specify): .

My fees are $

for travel and $

for services, for a total of $

0

.

I declare under penalty of perjury that this information is true.

Date:

Server’s signature Printed name and title

Additional information regarding attempted service, etc:

Server’s address

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Case 1:16-cv-01021-ELH Document 1-4 Filed 04/06/16 Page 1 of 2
AO 440 (Rev. 06/12) Summons in a Civil Action
UNITED STATES DISTRICT COURT
for the
________D_is_tDricisttorifcMt oafr_y_la_n_d______

Maryland Restorative Justice Initiative; Calvin McNeill; Nathaniel Foster; Kenneth Tucker
Plaintiff(s)
v. Larry Hogan; David Blumberg; Stephen Moyer;
Wayne Webb
Defendant(s)

)

)

)

)

)

) )

Civil Action No.

)

)

)

)

)

SUMMONS IN A CIVIL ACTION To: (Defendant’s name and address) Governor Larry Hogan; 100 State Circle; Annapolis, Maryland 21401.

A lawsuit has been filed against you.

Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you

are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.

P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of

the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,

whose name and address are:

Barry Fleishman; Kilpatrick Townsend & Stockton LLP; 607 14th St. NW, Suite 900; Washington, D.C. 20005.

Sonia Kumar; ACLU of Maryland; 3600 Clipper Mill Road, Suite 350; Baltimore, Maryland 21211.

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.

Date:

CLERK OF COURT
Signature of Clerk or Deputy Clerk

Case 1:16-cv-01021-ELH Document 1-4 Filed 04/06/16 Page 2 of 2
AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)
Civil Action No.

PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))

This summons for (name of individual and title, if any)

was received by me on (date)

.

’ I personally served the summons on the individual at (place)

on (date)

; or

’ I left the summons at the individual’s residence or usual place of abode with (name)

, a person of suitable age and discretion who resides there,

on (date)

, and mailed a copy to the individual’s last known address; or

’ I served the summons on (name of individual) designated by law to accept service of process on behalf of (name of organization)
on (date)

, who is ; or

’ I returned the summons unexecuted because

; or

’ Other (specify): .

My fees are $

for travel and $

for services, for a total of $

0

.

I declare under penalty of perjury that this information is true.

Date:

Server’s signature Printed name and title

Additional information regarding attempted service, etc:

Server’s address

Print

Save As...

Reset

Case 1:16-cv-01021-ELH Document 1-5 Filed 04/06/16 Page 1 of 2
AO 440 (Rev. 06/12) Summons in a Civil Action
UNITED STATES DISTRICT COURT
for the
________D_is_tDricisttorifcMt oafr_y_la_n_d______

Maryland Restorative Justice Initiative; Calvin McNeill; Nathaniel Foster; Kenneth Tucker
Plaintiff(s)
v. Larry Hogan; David Blumberg; Stephen Moyer;
Wayne Webb
Defendant(s)

)

)

)

)

)

) )

Civil Action No.

)

)

)

)

)

SUMMONS IN A CIVIL ACTION To: (Defendant’s name and address) Governor Larry Hogan; 100 State Circle; Annapolis, Maryland 21401.

A lawsuit has been filed against you.

Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you

are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.

P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of

the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,

whose name and address are:

Barry Fleishman; Kilpatrick Townsend & Stockton LLP; 607 14th St. NW, Suite 900; Washington, D.C. 20005.

Sonia Kumar; ACLU of Maryland; 3600 Clipper Mill Road, Suite 350; Baltimore, Maryland 21211.

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.

Date:

CLERK OF COURT
Signature of Clerk or Deputy Clerk

Case 1:16-cv-01021-ELH Document 1-5 Filed 04/06/16 Page 2 of 2
AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)
Civil Action No.

PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))

This summons for (name of individual and title, if any)

was received by me on (date)

.

’ I personally served the summons on the individual at (place)

on (date)

; or

’ I left the summons at the individual’s residence or usual place of abode with (name)

, a person of suitable age and discretion who resides there,

on (date)

, and mailed a copy to the individual’s last known address; or

’ I served the summons on (name of individual) designated by law to accept service of process on behalf of (name of organization)
on (date)

, who is ; or

’ I returned the summons unexecuted because

; or

’ Other (specify): .

My fees are $

for travel and $

for services, for a total of $

0

.

I declare under penalty of perjury that this information is true.

Date:

Server’s signature Printed name and title

Additional information regarding attempted service, etc:

Server’s address

Print

Save As...

Reset

 
 Case 1:16-cv-01021-ELH Document 23 Filed 07/08/16 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

MARYLAND RESTORATIVE JUSTICE INITIATIVE, et al.,
Plaintiffs,
v.

* * * No. 1:16-cv-01021-ELH

GOVERNOR LARRY HOGAN, et al., *

Defendants.

*

* ** * * * * * * * * * * * * * DEFENDANTS’ MOTION TO DISMISS, OR IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT

Defendants Governor of Maryland Lawrence J. Hogan, Jr.; Secretary of Public

Safety and Correctional Services Stephen T. Moyer; Chairman of the Maryland Parole

Commission David R. Blumberg; and Commissioner of Corrections Dayena M. Corcoran,

all sued in their official capacities, through counsel, move to dismiss the complaint (ECF

No. 1) under Federal Rules of Civil Procedure 8(c) and 12(b)(1), (6) for lack of subject

matter jurisdiction and failure to state a claim upon which relief can be granted. For reasons

more fully stated in the accompanying memorandum in support of the motion to dismiss

the amended complaint, the claims are barred by the rule set forth in Heck v. Humphrey,

512 U.S. 477 (1994), and applicable statute of limitations; the complaint fails to state a

claim on which relief can be granted; and the plaintiffs have failed to exhaust their claims

against Commissioner Corcoran as required under the Prison Litigation Reform Act, 42

U.S.C. § 1997e(a).

Case 1:16-cv-01021-ELH Document 23 Filed 07/08/16 Page 2 of 3
Alternatively, the defendants move for summary judgment under Federal Rule of
Civil Procedure 56 on all counts of the complaint for the reasons stated more fully in the
accompanying supporting memorandum.
A supporting memorandum and proposed order are attached.
CONCLUSION
The complaint should be dismissed and, in the alternative, summary judgment
should be entered for defendants.
Respectfully submitted,
/s/ Steven M. Sullivan ______________________ STEVEN M. SULLIVAN Federal Bar No. 24930 JULIA DOYLE BERNHARDT Federal Bar No. 25300 Assistant Attorneys General 200 Saint Paul Place, 20th Floor Baltimore, Maryland 21202 ssullivan@oag.state.md.us jbernhardt@oag.state.md.us (410) 576-6325 (410) 576-6955 (facsimile)
MICHAEL O. DOYLE Federal Bar No. 11291 Assistant Attorney General Department of Public Safety and Correctional Services 300 East Joppa Road, Suite 1000 Towson, Maryland 21286 michaelo.doyle@maryland.gov (410) 339-7567 2

Case 1:16-cv-01021-ELH Document 23 Filed 07/08/16 Page 3 of 3 (410) 764-5366 (facsimile) Attorneys for Defendants
3

Case 1:16-cv-01021-ELH Document 23-1 Filed 07/08/16 Page 1 of 65

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

MARYLAND RESTORATIVE JUSTICE INITIATIVE, et al.,
Plaintiffs,
v.

* * * No. 1:16-cv-01021-ELH

GOVERNOR LARRY HOGAN, et al., *

Defendants.

*

* ** * * * * * * * * * * * * *

MEMORANDUM IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS, OR IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT

July 8, 2016

BRIAN E. FROSH Attorney General of Maryland
STEVEN M. SULLIVAN Federal Bar No. 24930 JULIA DOYLE BERNHARDT Federal Bar No. 25300 Assistant Attorneys General 200 Saint Paul Place, 20th Floor Baltimore, Maryland 21202 ssullivan@oag.state.md.us (410) 576-6325
MICHAEL O. DOYLE Federal Bar No. 11291 Assistant Attorney General 300 East Joppa Road, Suite 1000 Towson, Maryland 21286 michaelo.doyle@maryland.gov (410) 339-7567
Attorneys for Defendants

Case 1:16-cv-01021-ELH Document 23-1 Filed 07/08/16 Page 2 of 65
TABLE OF CONTENTS
Page
INTRODUCTION ............................................................................................................... 1
STATEMENT OF FACTS .................................................................................................. 4 Maryland’s System for Early Prisoner Release........................................................ 4 Parole ............................................................................................................. 4 Mandatory Supervision ................................................................................. 8 Executive Clemency.................................................................................... 10 Early Releases of Division Inmates Serving Life Sentences for Crimes Committed as Juveniles .......................................................................................... 10 Parole of John Alexander Jones (17 Years of Age at Time of Offense)......................................................... 11 Parole of Mark Farley Grant (14 Years of Age at Time of Offense)......................................................... 12 Parole of Mary Washington Brown (16 Years of Age at Time of Offense)......................................................... 13 Parole of Karen Lynn Fried (17 Years of Age at Time of Offense)......................................................... 14 Parole of Milton Humphrey (17 Years of Age at Time of Offense)......................................................... 15
ARGUMENT..................................................................................................................... 15
I. STANDARD OF REVIEW ........................................................................................... 15
II. THE PLAINTIFFS’ § 1983 CLAIMS ARE BARRED BY THE RULE ANNOUNCED IN HECK V. HUMPHREY BECAUSE A JUDGMENT IN THEIR FAVOR WOULD NECESSARILY IMPLY THE INVALIDITY OF THEIR ALLEGED DE FACTO LIFEWITHOUT-PAROLE SENTENCES. ............................................................................. 17
III. ALL CLAIMS ARE BARRED BY THE STATUTE OF LIMITATIONS. ............................. 20
A. Principles Governing Statute of Limitations for § 1983 Claims.......................................................................................................... 20

Case 1:16-cv-01021-ELH Document 23-1 Filed 07/08/16 Page 3 of 65
B. Principles Governing Statute of Limitations for Claims Under Article 25 of the Maryland Declaration of Rights....................................... 21
C. The Same Statute of Limitations and Accrual Rules Apply to the Plaintiffs’ Prayer for Declaratory Relief. .............................................. 22
D. The Plaintiffs’ Allegations Confirm That All of Their Claims Are Untimely Under the Applicable Three-Year Statute of Limitations................................................................................................... 23
E. The Statute of Limitations Is Not Tolled Due to the Existence of Adverse Precedent That Might Have Prevented the Plaintiffs from Prevailing. ........................................................................... 25
F. The Plaintiffs Cannot Satisfy the Requirements for the Continuing Violation Exception.................................................................. 28
IV. THE COMPLAINT FAILS TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED. ............................................................................................................... 32
A. The Plaintiffs’ Allegations Fail to State a Plausible Claim Under the Eighth and Fourteenth Amendments or Article 25 of the Maryland Declaration of Rights........................................................ 32
B. The Plaintiffs’ Allegations Demonstrate That They Are Being Provided Meaningful Opportunities for Release......................................... 41
1. Calvin McNeil .................................................................................. 42
2. Kenneth Tucker ................................................................................ 45
3. Nathaniel Foster ............................................................................... 48
V. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT BECAUSE UNDISPUTED FACTS SHOW THAT PRISONERS SERVING LIFE SENTENCES FOR CRIMES COMMITTED AS JUVENILES RECEIVE NOTICE AND OPPORTUNITY TO PARTICIPATE IN THE PAROLE PROCESS AND TO DEMONSTRATE MATURITY AND REHABILITATION, AND HAVE BEEN GRANTED PAROLE. ................................ 50
A. Maryland’s Parole Process Affords Inmates Serving Life Sentences with Proper Parole Consideration. ............................................. 51
ii

Case 1:16-cv-01021-ELH Document 23-1 Filed 07/08/16 Page 4 of 65 B. Maryland’s Parole Process Has Resulted in the Parole of
Inmates Serving Life Sentences for Crimes Committed as Juveniles. ..................................................................................................... 52 VI. THE PLAINTIFFS’ CLAIM AGAINST THE COMMISSIONER OF CORRECTIONS IS BARRED BY THE MANDATORY EXHAUSTION PROVISION OF THE PRISON LITIGATION REFORM ACT....................................................................................... 54 CONCLUSION ................................................................................................................. 54
iii

Case 1:16-cv-01021-ELH Document 23-1 Filed 07/08/16 Page 5 of 65
TABLE OF AUTHORITIES Page
Cases A Society Without a Name v. Virginia, 655 F.3d 342 (4th Cir. 2011)............. 21, 24, 28, 29 Algrant v. Evergreen Valley Ltd. P’ship,
126 F.3d 178 (3d Cir. 1997)......................................................................................... 23 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ..................................................... 16 Ashcroft v. Iqbal, 556 U.S. 662 (2009).................................................................. 15, 16, 42 Aziz v. Alcolac, Inc., 658 F.3d 388 (4th Cir. 2011) ........................................................... 50 Bacon v. Arey, 203 Md. App. 606 (2012) ................................................................... 23, 29 Barnhill v. Strong, Civil No. JFM 07-1678, 2008 WL 544835 (D. Md. 2008) .......... 21, 22 Bear Cloud v. State, 294 P.3d 36 (Wyo. 2013) ................................................................. 34 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).................................................. 15, 47, 50 Bonilla v. State, 791 N.W.2d 697 (Iowa 2010) ................................................................. 33 Bousley v. United States, 523 U.S. 614 (1998) ................................................................. 26 Broom v. Strickland, 579 F.3d 553 (6th Cir. 2009) ........................................................... 31 Brown v. Georgia Bd. of Pardons & Paroles,
335 F.3d 1259 (11th Cir. 2003) ............................................................................. 29, 30 Burnette v. Fahey, 687 F.3d 171 (4th Cir. 2012) ........................................................ 38, 48 Cathcart v. State, 397 Md. 320 (2007) ................................................................................ 8 CGM, LLC v. BellSouth Telecomm., Inc., 664 F.3d 46 (4th Cir. 2011) ...................... 22, 23 Commercial Union Ins. Co. v. Porter Hayden Co.,
116 Md. App. 605 (1997)............................................................................................. 23 Cowell v. Palmer Twp., 263 F.3d 286 (3d Cir. 2001) ....................................................... 29
iv

Case 1:16-cv-01021-ELH Document 23-1 Filed 07/08/16 Page 6 of 65
Davidson v. Koerber, 454 F. Supp. 1256 (D. Md. 1978) .................................................. 21 District Att’y’s Office for Third Judicial Dist. v. Osborne,
557 U.S. 52 (2009) ....................................................................................................... 20 Dodd v. United States, 545 U.S. 353 (2005) ..................................................................... 27 eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006) ................................................ 17 Edwards v. Balisok, 520 U.S. 641 (1997) ................................................................... 17, 18 Electro-Nucleonics, Inc. v. Washington Suburban Sanitary Comm’n,
315 Md. 361 (1989) ..................................................................................................... 21 Evans v. State, 396 Md. 256 (2006) .................................................................................. 32 Gaston v. Taylor, 946 F.2d 340 (4th Cir. 1991) ................................................................ 37 Giarratano v. Johnson, 521 F.3d 298 (4th Cir. 2008)....................................................... 16 Graham v. Florida, 560 U.S. 48 (2010).......................................................................passim Graziano v. Pataki, 689 F.3d 110 (2nd Cir. 2012)............................................................ 38 Greenholtz v. Inmates of Neb. Penal & Corr. Complex,
442 U.S. 1 (1979) ......................................................................................................... 37 Hanson v. Hughes, 52 Md. App. 246 (1982)....................................................................... 5 Hayden v. Keller, 134 F. Supp. 3d 1000 (W.D.N.C. 2015) .............................................. 51 Heck v. Humphrey, 512 U.S. 477 (1994) ........................................................ 17, 18, 19, 20 Henry v. Purnell, 652 F.3d 524 (4th Cir. 2011) ................................................................ 16 Heron v. Strader, 361 Md. 258 (2000) ........................................................................ 22, 24 Holland v. Florida, 560 U.S. 631 (2010) .......................................................................... 26 International Ass’n of Machinists & Aero. Workers v. Tennessee Valley Auth.,
108 F.3d 658 (6th Cir. 1997) ................................................................................. 22, 23 Jersey Heights Neighborhood Ass’n v. Glendening,
174 F.3d 180 (4th Cir. 1999) ................................................................................. 20, 28
v

Case 1:16-cv-01021-ELH Document 23-1 Filed 07/08/16 Page 7 of 65
Legend Night Club v. Miller, 637 F.3d 291 (4th Cir. 2011).............................................. 17 Libertarian Party of Va. v. Judd, 718 F.3d 308 (4th Cir. 2013) ....................................... 16 Liverman v. Johnson, No. 3:07-cv-344, 2008 WL 2397544 (E.D. Va. 2008) .................. 30 Lomax v. Warden, 356 Md. 569 (1999)............................................................................. 24 Lovett v. Ray, 327 F. 3d 1181 (11th Cir. 2003) ................................................................. 30 Ly v. Beard, No. 15-70939, __ F. App’x __,
2016 WL 331881 (9th Cir. June 15, 2016) .................................................................. 27 Miller v. Alabama, __U.S. __, 132 S. Ct. 2455 (2012) ................................................ passim Minter v. Beck, 230 F.3d 663 (4th Cir. 2000).................................................................... 26 Montgomery v. Louisiana, __ U.S. __, 136 S. Ct. 718 (2016)......................................passim Moskowitz v. Trustees of Purdue Univ.,
5 F.3d 279 (7th Cir. 1993)............................................................................................ 29 Nasim v. Warden, Md. House of Corr., 64 F.3d 951 (4th Cir. 1995).......................... 21, 24 National Advertising Co. v. City of Raleigh,
947 F.2d 1158 (4th Cir. 1991) ............................................................................... 28, 29 Pantry Pride Enterprises, Inc. v. Glenlo Corp., 729 F.2d 963 (4th Cir. 1984)................. 20 People v. Gutierrez, 324 P.3d 245 (Cal. 2014) ................................................................. 36 People v. Holman, __ N.E.3d __, 2016 WL 868413
(Ill. App. Ct. 2016)....................................................................................................... 36 Poole v. Coakley & Williams Const., Inc., 423 Md. 91 (2011)................................... 22, 24 Porter v. Ray, 461 F.3d 1315 (11th Cir. 2006)............................................................ 31, 54 Ross v. Blake, __ U.S. __, 136 S. Ct. 1850 (2016) ............................................................ 54 Skelly Oil Co. v. Phillips Petrol. Co., 339 U.S. 667 (1950) .............................................. 22 Solem v. Helm, 463 U.S. 277 (1983) ........................................................................... 32, 33 State ex rel. Murray v. Swenson, 196 Md. 222 (1950) ................................................ 32, 33
vi

Case 1:16-cv-01021-ELH Document 23-1 Filed 07/08/16 Page 8 of 65
State v. Castaneda, 842 N.W.2d 740 (Neb. 2014) ............................................................ 33 State v. Wooten, 277 Md. 114 (1976) .................................................................................. 8 Stone v. Williams, 970 F.2d 1043 (2d Cir. 1992) .............................................................. 22 Swarthout v. Cooke, 562 U.S. 216 (2011) ................................................................... 37, 40 United States v. Kubrick, 444 U.S. 111 (1979) ................................................................. 21 United States v. Mathur, 685 F.3d 396 (4th Cir. 2012)..................................................... 27 Wag More Dogs, LLC v. Cozart, 680 F.3d 359 (4th Cir. 2012)........................................ 16 Wallace v. Kato, 549 U.S. 384 (2007)............................................................................... 21 Wershe v. Combs, No. 1:12-CV-1375, 2016 WL 1253036
(W.D. Mich. Mar. 31, 2016) ........................................................................................ 44 Whiteside v. United States, 775 F.3d 180 (4th Cir. 2011) ................................................. 26 Wilkinson v. Dotson, 544 U.S. 74 (2005) .............................................................. 17, 18, 19 Witherspoon v. Maryland Parole Comm’n, 149 Md. App. 101 (2002) .............................. 9 Woodford v. Ngo, 548 U.S. 81 (2008) ............................................................................... 54 Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013)....................................................... 16 Wright v. United States Postal Serv., 305 F. Supp. 2d 562 (D. Md. 2004)....................... 20
Constitutional Provisions U.S. Const. amend. VIII .............................................................................................. passim Md. Const. art. II, § 20 ...................................................................................................... 10 Md. Declaration of Rights art. 25 ............................................................................... passim
vii

Case 1:16-cv-01021-ELH Document 23-1 Filed 07/08/16 Page 9 of 65
Statutes 28 U.S.C. § 2244(d)(1) ...................................................................................................... 28 28 U.S.C. § 2244(d)(1)(C)................................................................................................. 27 28 U.S.C. § 2254 ..................................................................................................... 2, 20, 27 28 U.S.C. § 2255(f)(3)....................................................................................................... 27 42 U.S.C. § 1983 ........................................................................... 1, 2, 3, 17, 18, 20, 21, 27 42 U.S.C. § 1997e(a) ..................................................................................................... 3, 54 Md. Code Ann., Corr. Servs. § 3-502(2) ..................................................................... 43, 44 Md. Code Ann., Corr. Servs. § 3-502(3) ........................................................................... 43 Md. Code Ann., Corr. Servs. § 3-701(2) ......................................................................... 8, 9 Md. Code Ann., Corr. Servs. § 7-101(i) .............................................................................. 4 Md. Code Ann., Corr. Servs. § 7-101(m) ............................................................................ 4 Md. Code Ann., Corr. Servs. § 7-301(a) ............................................................................. 4 Md. Code Ann., Corr. Servs. § 7-301(c) ............................................................................. 4 Md. Code Ann., Corr. Servs. § 7-301(d)(1) ........................................................................ 5 Md. Code Ann., Corr. Servs. § 7-301(d)(2) ........................................................................ 5 Md. Code Ann., Corr. Servs. § 7-301(d)(4) (LexisNexis Supp. 2015) ............................... 7 Md. Code Ann., Corr. Servs. § 7-301(d)(5) (LexisNexis Supp. 2015) ............................... 8 Md. Code Ann., Corr. Servs. § 7-305............................................................................ 6, 47 Md. Code Ann., Corr. Servs. § 7-401(c) ............................................................................. 9 Md. Code Ann., Corr. Servs. § 7-401(d) ............................................................................. 9 Md. Code Ann., Corr. Servs. § 7-501.................................................................................. 9 Md. Code Ann., Corr. Servs. § 7-502(b)(1) ........................................................................ 9
viii

Case 1:16-cv-01021-ELH Document 23-1 Filed 07/08/16 Page 10 of 65
Md. Code Ann., Corr. Servs. § 7-502(b)(2) ........................................................................ 9 Md. Code Ann., Corr. Servs. § 7-601................................................................................ 10 Md. Code Ann., Crim. Law § 2-303 (LexisNexis 2012)..................................................... 5 Md. Code Ann., Crim. Law § 2-304.................................................................................... 5 Md. Code Ann., Cts. & Jud. Proc. § 5-101........................................................................ 20 Wyo. Stat. Ann. § 6-10-301(c) (2013) .............................................................................. 39
Rules Fed. R. Civ. P. 56............................................................................................................... 16 Fed. R. Civ. P. 56(c) .......................................................................................................... 16
Regulations COMAR § 12.08.01.15 (1995) .......................................................................................... 10 COMAR § 12.08.01.15.A (1995) ...................................................................................... 10 COMAR § 12.08.01.15B (1995) ....................................................................................... 10 COMAR § 12.08.01.18 (Pending)....................................................................................... 6 COMAR § 12.08.01.18.A(2)(a) ........................................................................................ 47 COMAR § 12.08.01.18.A(3)(f) ......................................................................................... 48 COMAR § 12.08.01.18.A(3)(g) ........................................................................................ 47
ix

Case 1:16-cv-01021-ELH Document 23-1 Filed 07/08/16 Page 11 of 65

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

MARYLAND RESTORATIVE JUSTICE INITIATIVE, et al.,
Plaintiffs,
v.

* * * No. 1:16-cv-01021-ELH

GOVERNOR LARRY HOGAN, et al., *

Defendants.

*

* * * * * * * * * * * * * * * * * MEMORANDUM IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS, OR
IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT

The plaintiffs, three prisoners confined in the Maryland Division of Correction

(“Division”) and the Maryland Restorative Justice Initiative (“MRJI”), a “grassroots

membership organization” that advocates “for individuals serving long-term prison

sentences,” Compl. (ECF No. 1) ¶ 16, bring this action under 42 U.S.C. § 1983 against four

Maryland officials: Governor Lawrence J. Hogan, Jr.; Secretary of Public Safety and

Correctional Services Stephen T. Moyer; Chairman of the Maryland Parole Commission

David R. Blumberg; and Commissioner of Corrections Dayena M. Corcoran. All

defendants are sued in their official capacities. The plaintiffs allege that the individual

plaintiffs’ sentences of life, with the possibility of parole after fifteen years less diminution

of confinement credits (“diminution credits”), are de facto sentences of life without parole

and, as such, violate the Eighth and Fourteenth Amendments to the United States

Constitution and Article 25 of the Maryland Declaration of Rights.

Case 1:16-cv-01021-ELH Document 23-1 Filed 07/08/16 Page 12 of 65
All three of the plaintiffs are serving parolable life sentences for murders committed when they were under the age of eighteen. Compl. ¶¶ 122, 136, 147. Each has repeatedly been considered for parole – and in the case of Mr. McNeill, even recommended for release, Compl. ¶¶ 127-129. Nonetheless, the plaintiffs seek relief under a series of cases in which the Supreme Court addressed the constitutionality of sentences of life without the possibility of parole imposed on juvenile offenders. See Miller v. Alabama, __ U.S. __, 132 S. Ct. 2455, 2469 (2012) (holding that the Eighth Amendment prohibits mandatory sentences of life in prison without parole for juveniles); Graham v. Florida, 560 U.S. 48, 74 (2010) (holding that sentences of life without parole for juvenile offenders convicted of non-homicide offenses violate the Eighth Amendment); and Montgomery v. Louisiana, __ U.S. __, 136 S. Ct. 718, 736 (2016) (applying Miller retroactively). These cases require that a juvenile offender be afforded a “meaningful” opportunity to demonstrate maturity and rehabilitation to parole authorities through the “means and mechanisms” made available by the State. Graham, 560 U.S. at 75, 82; Miller, 132 S. Ct. at 2469. The plaintiffs allege that as a result of the defendants’ “illegal” and “unconstitutional” conduct, the individual plaintiffs’ sentences of life with the possibility of parole “have been converted into de facto [life without the possibility of parole] sentences . . . .” and, as such, are unconstitutional. Compl. ¶ 11; Compl. 59 (emphasis added).
This Court should decline to consider the merits of plaintiffs’ claims in this § 1983 action because an application for a writ of habeas corpus under 28 U.S.C. § 2254 is the exclusive remedy for state prisoners who, like plaintiffs, challenge the fact or duration of their
2

Case 1:16-cv-01021-ELH Document 23-1 Filed 07/08/16 Page 13 of 65
confinement and seek an immediate or speedier release from prison. If properly brought as an action under 42 U.S.C. § 1983, plaintiffs’ challenges to parole policies and decisions dating back more than 20 years are barred by plaintiffs’ failure to bring this action within the applicable three-year limitations period. The plaintiffs’ claims against Commissioner Corcoran are also barred by their failure to exhaust administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a).
Even if the merits of plaintiffs’ claims were to be considered by the Court, the allegations of the complaint make clear that they have had multiple opportunities to demonstrate that they merit early release, and continue to have such opportunities, as required by the Supreme Court’s cases. Moreover, the undisputed facts make clear that, contrary to the plaintiffs’ assertions, procedures put into place by Maryland authorities to determine inmate suitability for early release from prison, while also considering whether such release is consistent with public safety, have resulted in the parole releases of prisoners sentenced to life imprisonment, including prisoners who committed crimes as juveniles.
Consistent with the Supreme Court’s determination that juveniles “are constitutionally different from adults,” Montgomery, 136 U.S. at 733 (quotation omitted), the defendants have promulgated new policies that expressly provide for the Maryland Parole Commission to consider the “three primary ways,” Montgomery, 136 U.S. at 733, in which juveniles differ, as well as other factors relevant to juvenile offenders, when the Parole Commission considers a parole application of an inmate sentenced for a crime committed as a juvenile. The defendants have also amended their parole policies to ensure
3

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that all prisoners have access to the information to be considered by parole authorities when considering a parole application, to the full extent permitted by law, and their revised prison classification policies, which have already been implemented, remove restrictions on juvenile offenders’ progressing to lower security levels, including work-release. Accordingly, as explained more fully below, this Court should grant judgment to the defendants, because there is no merit to plaintiffs’ Eighth Amendment claims.
STATEMENT OF FACTS Maryland’s System for Early Prisoner Release There are three statutory mechanisms that result in early release for inmates in the Division: parole, mandatory supervision, and the exercise of executive clemency, which includes pardon and commutation. Over the 20-year time period encompassed by the complaint, all three types of release, sometimes employed in combination in individual cases, have been used to release inmates serving life sentences from prison, including those serving life sentences for crimes committed as juveniles. Parole Parole is a discretionary, conditional release ordered by the Parole Commission. Md. Code Ann., Corr. Servs. § 7-101(i). In general, inmates are eligible for parole after serving one-quarter of their sentences. Corr. Servs. § 7-301(a). However, inmates serving sentences for violent crimes as defined in Correctional Services § 7-101(m) must serve half of their sentences before they can be paroled. Corr. Servs. § 7-301(c).
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The law governing parole eligibility for inmates serving parolable life sentences typically entitles them to earlier parole consideration than that available to inmates serving a term of years for a violent crime. An inmate serving a life sentence ordinarily is eligible for parole after serving 15 years of the sentence, less diminution credits. Corr. Servs. § 7-301(d)(1). If the case is one in which the State’s Attorney sought a sentence of death or life without the possibility of parole, under former Criminal Law § 2-303 or Criminal Law § 2-304, the inmate is eligible for parole after serving 25 years, less diminution credits. Corr. Servs. § 7-301(d)(2). Although an inmate serving a parolable life sentence cannot be released through the application of diminution credits, application of credits will result in parole eligibility after approximately 11½ years, or approximately 20 years if a sentence of death or life without the possibility of parole was initially sought but not imposed.1
In all cases, the applicable statute and regulation require the Parole Commission to consider the following factors in determining whether to grant parole:
1. the circumstances surrounding the crime; 2. the physical, mental, and moral qualifications of the inmate;
1 The following hypothetical illustrates why an inmate serving a life sentence will typically be eligible for parole before an inmate serving a term-of-years sentence for a violent crime. If an inmate receives a 50-year term for a violent crime or crimes, the inmate must serve 25 years before becoming eligible for parole. However, if the inmate receives a life sentence for such crimes, the inmate will be parole-eligible after serving approximately 11½ years (or approximately 20 years if sentenced under Criminal Law § 2-303 or 2-304). This rule also applies to an inmate serving a life sentence, with all but a term of years suspended, followed by probation upon release. See Hanson v. Hughes, 52 Md. App. 246, 248, aff’d, 294 Md. 599 (1982). Thus, an inmate serving a life sentence, with all but 50 years suspended, will also be eligible for parole after serving approximately 11 ½ years, or 20 years, if sentenced under Criminal Law § 2-303 or 2-304.
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3. the progress of the inmate during confinement; 4. a report on a drug or alcohol evaluation that has been conducted on the
inmate; 5. whether there is a reasonable probability that the inmate, if released on
parole, will remain at liberty without violating the law; 6. whether release of the inmate on parole is compatible with the welfare of
society; 7. an updated victim impact statement; 8. any recommendation made by the sentencing judge at the time of
sentencing; 9. any information that is presented to a commissioner at a meeting with the
victim; and 10. any testimony presented to the Commission by the victim or the victim’s
designated representative.
Corr. Servs § 7-305. See also Md. Code Regs. (“COMAR”) § 12.08.01.18 (1995) (also
listing criteria to be considered).
Additionally, in response to the Supreme Court’s decisions regarding juvenile
offenders, the Parole Commission has adopted a policy to provide expressly that it will
consider the following factors in determining whether a prisoner who committed a crime
as a juvenile is suitable for release on parole:
(a) Age at the time the crime was committed; (b) The individual’s level of maturity and sense of responsibility at the
time of the crime was committed; (c) Whether influence or pressure from other individuals contributed to
the commission of the crime; (d) Whether the prisoner’s character developed since the time of the
crime in a manner that indicates the prisoner will comply with the conditions of release;
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(e) The home environment and family relationships at the time the crime was committed;
(f) The individual’s educational background and achievement at the time the crime was committed; and
(g) Other factors or circumstances unique to prisoners who committed crimes at the time the individual was a juvenile that the Commissioner determines to be relevant.
Exhibit 1 (Decl. of David Blumberg) ¶ 27, Attachment V. In accordance with the Maryland Administrative Procedure Act, Md. Code Ann., State Gov’t §§ 10-101 − 10-118, the Parole Commission has proposed to amend its regulations to reflect the new policy. Exhibit 1 ¶ 27.
The Division also recently revised its policies regarding prisoners serving life sentences for crimes committed as juveniles. The Division’s Case Management Manual now allows such an inmate to be classified to minimum or pre-release security if the Parole Commission recommends that the inmate participate in “outside testing and/or work release.” Exhibit 2 (OPS.100.0004.5.D.).2 See Alison Knezevich, “Md. Juvenile Lifers Could be Considered for Minimum Security, Work Release Programs in Policy Shift,” Baltimore Sun (June 27, 2016).
Maryland law requires the Governor’s approval of a Parole Commission decision to grant parole to an inmate who has served fewer than 25 years of a life sentence, without application of diminution credits. Corr. Servs. § 7-301(d)(4) (LexisNexis Supp. 2015).
2 “Outside testing” refers to an inmate’s supervised participation in a work assignment outside the confines of the prison.
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Such approval is not required, however, if the Parole Commission elects to parole an inmate who has served 25 years or more of a life sentence. Instead, the law allows the Governor to disapprove a parole decision made by the Parole Commission with regard to such an inmate. Corr. Servs. § 7-301(d)(5) (LexisNexis Supp. 2015). However, if the Parole Commission elects to parole an inmate who has served 25 years, and the Governor does not disapprove the Parole Commission’s decision within 180 days of receiving it, the parole decision becomes effective. Id. These laws addressing Governor-approval also apply to inmates serving sentences of life, with or without a term of years suspended.3
Mandatory Supervision Under Correctional Services §§ 3-701 – 3-711, and with exceptions not relevant here, an inmate serving “a term of confinement” in the Division may earn diminution credits, which are applied to the inmate’s term to reduce the length of the inmate’s incarceration. A “term of confinement” is “the length of the sentence” for an inmate serving a single sentence. Corr. Servs. § 3-701(2). For an inmate serving multiple concurrent or consecutive sentences, the term of confinement is the “[t]he period from the first day of the sentence that begins first through the last day of the sentence that ends last.”
3 As was true when the individual plaintiffs were sentenced and remains true today, in Maryland a sentencing judge has the discretion to suspend all or part of a parolable life sentence. Cathcart v. State, 397 Md. 320, 328 (2007) (requiring imposition of period of probation upon suspension of execution of all or part of a life sentence); State v. Wooten, 277 Md. 114, 115 (1976) (finding “nothing improper in the trial court’s suspension of all but the first eight years of the life sentence it imposed in this case”).
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Id. The last day of the term of confinement is the “maximum expiration date.” It is from this date that diminution credits are subtracted.
Upon earning a sufficient number of diminution credits, the inmate is released on “mandatory supervision.” Corr. Servs. § 7-501. While on mandatory supervision, the releasee “is subject to . . . all laws, rules, regulations, and conditions that apply to parolees” and “any special conditions established by a [parole] commissioner.” Corr. Servs. § 7-502(b)(1), (2). If the supervisee fails to abide by the terms and conditions of release, the Parole Commission may revoke the mandatory supervision and require the supervisee to serve the balance of the term less any credit allowed by the presiding commissioner for the period between release and revocation. Corr. Servs. § 7-401(c), (d).
An inmate serving a life sentence with all but a portion of that sentence suspended is eligible to earn diminution credits because the inmate is serving a “term of confinement” as defined under Correctional Services § 3-701(2). Thus, if, for example, the inmate is serving life, with all but 20 years suspended, the inmate will be released after serving the 20 years, less diminution credits.
An inmate serving a life sentence with no portion suspended is not serving a “term of confinement” because there is no “last day of the sentence.” Thus, an inmate serving such a sentence, even if it is imposed with the possibility for parole, “cannot obtain early release based on diminution of confinement credits.” Witherspoon v. Maryland Parole Comm’n, 149 Md. App. 101, 103 (2002). As noted above, however, earned diminution credits will advance the inmate’s parole eligibility date.
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Executive Clemency The Governor’s power to grant commutations and pardons is derived from Article II, § 20 of the Maryland Constitution. That authority is currently codified at Correctional Services § 7-601, which permits the Governor, as relevant here, to “pardon an individual convicted of a crime subject to any conditions the Governor requires,” or “remit any part of a sentence of imprisonment subject to any conditions the Governor requires, without the remission operating as a full pardon.” The Parole Commission’s regulations addressing its role in the commutation process have specific applicability to inmates serving life sentences. See COMAR § 12.08.01.15 (1995). For “[l]ife [c]ases, . . . [t]he [Parole] Commission will recommend to the Governor a commutation of a life sentence where the case warrants special consideration or where the facts and circumstances of the crime justify special consideration, or both.” Id. § 12.08.01.15.B.4 Early Releases of Division Inmates Serving Life Sentences for Crimes Committed as Juveniles As demonstrated in Parole Commission Chairman Blumberg’s attached declaration, Maryland’s early release system has resulted in the release of inmates serving life sentences,
4 For inmates serving non-life sentences, the regulations permit the Parole Commission, in “unusual” circumstances, to recommend that the Governor commute an inmate’s sentence “to time served,” resulting in the inmate’s immediate release, or “to a number of years.” COMAR § 12.08.01.15.A (1995). “Once [the sentence is] commuted, the [Parole] Commission, in its discretion, may release the inmate on parole.” Id.
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including parole releases of inmates sentenced to life imprisonment for crimes committed as
juveniles.
Chairman Blumberg’s declaration describes the parole of the following juvenile
offenders.5
Parole of John Alexander Jones (17 Years of Age at Time of Offense) On November 5, 2012, upon recommendation of the Parole
Commission, Governor Martin O’Malley conditionally commuted the life sentence of John Alexander Jones, Division identification number 168832, to life, with all but 47 years suspended. See Attachment A (Executive Order 01.01.2012.27). Mr. Jones was convicted by the Circuit Court for Baltimore City on August 25, 1983 of felony murder, and received a life sentence. Mr. Jones was also convicted of attempted robbery with a deadly weapon, and a handgun violation, for which he received a concurrent five-year sentence. In conditionally commuting Mr. Jones’s life sentence, the Governor noted that Mr. Jones “was seventeen years old at the time of the offense and has compiled, while incarcerated, a strong record of work experience and institutional progress, including the attainment of a GED and then an undergraduate degree from Coppin State University.” Attachment A, p. 1. The Governor also noted that “[t]he jury convicted [Mr. Jones] of [f]elony [m]urder for participation in an attempted robbery that led to the murder, but the State . . . did not allege that [Mr. Jones] was the shooter;” that the State’s Attorney for Baltimore City “does not oppose clemency” for Mr. Jones; and that the Parole Commission “has concluded that [Mr. Jones] presently appears to constitute no threat to public safety and recommends the granting of [e]xecutive [c]lemency.” Attachment A, p. 1.
The Governor conditioned the commutation of Mr. Jones’s sentence on Mr. Jones’s participation in “a period of community testing and/or . . . work release” and a re-entry plan, to include a home plan, an “employment plan that includes as necessary, job placement, job training, and/or
5 Since 2004, in addition to these juvenile offenders, five inmates who were originally sentenced to life imprisonment for crimes committed as adults, that is, at age 18 or older, have been paroled from the Division or released from the Division on mandatory supervision following a commutation of sentence granted by the Governor. Exhibit 1 ¶¶ 4, 19-23.
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educational programs,” a counseling plan, and if deemed necessary by the Parole Commission, a substance abuse evaluation and treatment program. Attachment A, p. 2. The Governor authorized the Parole Commission to grant parole to Mr. Jones, if merited, and also directed that upon release, Mr. Jones participate in counseling, and mental health treatment and substance abuse treatment, as directed by the Parole Commission and his supervising agent. Attachment A at pp. 2-3. The Governor’s order also provided for supervision by the Parole Commission following the expiration of the 47year term, if deemed necessary by the Parole Commission, and included procedures for revocation of the release if Mr. Jones failed to abide by its terms. Attachment A, pp. 4-5. Following the conditional commutation of Mr. Jones’s sentence, the Parole Commission granted parole to Mr. Jones on February 20, 2013. See Attachment B (Order for Release on Parole).
Parole of Mark Farley Grant (14 years of Age at Time of Offense)
On March 29, 2012, Governor O’Malley, upon recommendation of the Parole Commission, conditionally commuted the life sentence of Mark Farley Grant, Division identification number 171372, to a term of life, with all but 45 years suspended. See Attachment C (Executive Order 01.01.2012.06). Mr. Grant was sentenced by the Circuit Court for Baltimore City on January 31, 1984 to life imprisonment, and a consecutive 15-year term, after a jury found him guilty of felony murder, use of a handgun in the commission of a crime of violence, and attempted robbery with a deadly weapon. In 2003, the sentencing court merged the sentences for use of a handgun and attempted robbery into the life sentence. Attachment C, p. 1.
The Governor noted that Mr. Grant “was fourteen years old at the time of the offense and has compiled, while incarcerated, a strong record of work experience and institutional progress.” Attachment C, p. 1. He also noted that the jury had acquitted Mr. Grant of first-degree murder; that the State’s Attorney for Baltimore City “does not oppose clemency for [Mr. Grant];” and that the Parole Commission “has concluded that [Mr. Grant] presently appears to constitute no threat to public safety and recommends the granting of [e]xecutive [c]lemency.” Attachment C, p. 1.
The commutation of Mr. Grant’s sentence was conditioned on Mr. Grant’s participation in “a period of community testing and/or . . . work release” and a re-entry plan, to include a home plan, an employment plan “that includes, as necessary, job placement, job training, and/or educational programs,” a counseling plan, and if deemed necessary by the Parole Commission, a substance abuse evaluation and treatment program.
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Attachment C, p. 2. The Governor’s order authorized the Parole Commission to grant parole to Mr. Grant, if merited, and also directed that upon release, Mr. Grant participate in counseling and mental health treatment and substance abuse treatment, as directed by the Parole Commission and his supervising agent. Attachment C, pp. 2-3. The order also provided for supervision by the Parole Commission following the expiration of the 45year term, if deemed necessary by the Parole Commission, and procedures for revocation of the release if Mr. Grant failed to abide by its terms. Attachment C, pp. 4-5. Following the conditional commutation of Mr. Grant’s sentence, the Parole Commission paroled Mr. Grant on December 18, 2012. See Attachment D (Order for Release on Parole).
Parole of Mary Washington Brown (16 years of Age at Time of Offense)
On November 25, 2004, Governor Robert L. Ehrlich, Jr., on recommendation of the Parole Commission, conditionally commuted the life sentence of Mary Washington Brown, Division identification number 901457. See Attachment E (Executive Order 01.01.2004.67). Ms. Brown was sentenced to imprisonment for life by the Circuit Court for Baltimore City on December 18, 1974, following her conviction for first degree murder. At the time of the offense, Ms. Brown was 16 years of age.
In commuting Ms. Brown’s sentence, the Governor noted the following: that Ms. Brown was “an exemplary inmate,” and had “compiled an impressive record of practical instruction, work experience, and institutional progress;” that the Parole Commission “has concluded that [Ms. Brown] appears to constitute no threat to the safety of society;” and that the Parole Commission “recommends the granting of executive clemency.” Attachment E, p. 1. He therefore concluded that “[t]he interests of the State of Maryland and of [Ms. Brown] will be best served by the granting of” the conditional commutation. Attachment E, p. 1.
The commutation of Ms. Brown’s sentence was conditioned on Ms. Brown’s participation in 12 months of work-release prior to reaching parole eligibility. Attachment E, p. 1. The Governor’s order further stated that in the event the Parole Commission “determines that [Ms. Brown] merits parole release,” Ms. Brown would be required to comply with a re-entry plan that included counseling and substance abuse treatment, as well as educational and vocational training. Attachment E, pp. 1-2.
Following the commutation of Ms. Brown’s sentence, the Parole Commission granted parole to Ms. Brown on February 13, 2006. See Attachment F (Order for Release on Parole). Because Governor Ehrlich
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commuted Ms. Brown’s sentence to a term of years, she was no longer serving a life sentence when the Parole Commission granted her parole, and approval by the Governor was thus not required. Ms. Brown remains under parole supervision until the 60-year term expires.
Parole of Karen Lynn Fried (17 years of Age at Time of Offense)
On November 14, 2003, Governor Ehrlich, on recommendation of the Parole Commission, commuted the life sentence of Karen Lynn Fried, Division identification no. 902530, to a term of 45 years. See Attachment G (Executive Order 01.01.2003.35). Ms. Fried had been sentenced to imprisonment for life by the Circuit Court for Baltimore County on September 15, 1978, following her conviction for murder. Ms. Fried also received a five-year concurrent sentence for conspiracy to commit murder. Attachment G, p. 1.
In commuting Ms. Fried’s sentence, Governor Ehrlich noted that when Ms. Fried committed the offenses, she was seventeen years of age. Attachment G, p. 1. He also noted that in August 1988, the sentencing judge “wrote his belief that ‘[Ms.] Fried has achieved maximum rehabilitation and has reached the point where she should be paroled.’” Attachment G, p. 1. The Governor further noted that in September 1993, “a three-judge panel of the Circuit Court for Baltimore County found that [Ms.] Fried’s progress during incarceration had been exemplary;” that “[h]er achievement in education and apparent rehabilitation had been noteworthy and highly commendable;” and that “[s]he appeared to have earned the opportunity to be considered for ultimate release from confinement[.]” Attachment G, p. 1. Additionally, Governor Ehrlich noted that while incarcerated, Ms. Fried “has earned her GED and engaged herself in a wide range of self-help programs,” and that she “has a comprehensive support network in place upon reentry.” Attachment G, p. 1.
Finally, Governor Ehrlich noted that the “Parole Commission has concluded that [Ms. Fried] being contrite and remorseful, presently appears to constitute no threat to the safety of society, and recommends her sentence to be commuted to a term of forty-five years[.]” Attachment G, p. 1. He concluded that “the interests of the State of Maryland and [Ms. Fried] will best be served by commutation of the sentence.” Attachment G, p. 1.
Following the commutation of Ms. Fried’s sentence to a term of 45 years, the Parole Commission granted parole to Ms. Fried on September 15, 2015. See Attachment H (Order for Release on Parole). As was the case with Ms. Brown, because Governor Ehrlich commuted Ms. Fried’s sentence
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to a term of years, she was no longer serving a life sentence at the time the Parole Commission granted her parole, and approval by the Governor was not required. Ms. Fried will remain under parole supervision until the 45year term expires on March 24, 2023.
Parole of Milton Humphrey (17 years of Age at Time of Offense) On May 20, 1999, the Parole Commission, with the approval of Governor Parris Glendening, granted a “medical parole” to Milton Humphrey, Division identification no. 193624. See Attachment I (Order for Release on Parole). Prior to the enactment, in 2008, of § 7-309 of the Correctional Services Article (“CS”), which specifically authorizes the granting of medical parole, the Parole Commission granted medical paroles under its general parole authority set forth in CS § 7-205. Mr. Humphrey was paroled from a life sentence beginning on October 6, 1987, imposed by the Circuit for Baltimore City on August 10, 1988, for first degree murder, and a consecutive 13-year sentence for use of a handgun. When he committed these crimes, Mr. Humphrey was 17 years of age. See Attachment J (Parole Information System (“PARIS”) record, reflecting that Mr. Humphrey was born on September 13, 1969 and that his offenses occurred on August 28, 1987). Mr. Humphrey died on or about June 9, 1999. See Attachment K (Offender-Based State Corrections Information System) (“OBSCIS”) record, reflecting that Mr. Humphrey’s case was closed on June 9, 1999, due to his death).
Exhibit 1 ¶¶ 5-18.
ARGUMENT
I. STANDARD OF REVIEW
To survive a motion to dismiss for failure to state a claim on which relief can be
granted, “a complaint must contain sufficient factual matter, accepted as true, ‘to state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Although the Court is
required to “‘take the facts in the light most favorable to the plaintiff,’” the Court “need
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not accept legal conclusions couched as facts or ‘unwarranted inferences, unreasonable conclusions, or arguments.’” Wag More Dogs, LLC v. Cozart, 680 F.3d 359, 365 (4th Cir. 2012) (quoting Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (internal citation omitted)). “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Iqbal, 556 U.S. at 679.
Under Rule 56 of the Federal Rules of Civil Procedure, a district court “shall grant summary judgment” if the moving party “shows that there is no genuine dispute as to any material fact” and the moving party “is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). In ruling on a motion for summary judgment, the Court is required to “view the facts and all justifiable inferences arising therefrom in the light most favorable to the nonmoving party.” Libertarian Party of Va. v. Judd, 718 F.3d 308, 312-13 (4th Cir. 2013) (quoting Woollard v. Gallagher, 712 F.3d 865, 873 (4th Cir. 2013)). “For purposes of summary judgment consideration, the substantive law identifies which facts are material, and ‘[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.’” Henry v. Purnell, 652 F.3d 524, 548 (4th Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
“Under ‘well-established principles of equity,’ a plaintiff seeking a permanent injunction must demonstrate:
(1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and
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defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.
Legend Night Club v. Miller, 637 F.3d 291, 297 (4th Cir. 2011) (quoting eBay Inc. v.

MercExchange, L.L.C., 547 U.S. 388, 391 (2006)).

II.

THE PLAINTIFFS’ § 1983 CLAIMS ARE BARRED BY THE RULE

ANNOUNCED IN HECK V. HUMPHREY BECAUSE A JUDGMENT IN THEIR

FAVOR WOULD NECESSARILY IMPLY THE INVALIDITY OF THEIR

ALLEGED DE FACTO LIFE-WITHOUT-PAROLE SENTENCES.

In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court “held that a state

prisoner’s claim for damages is not cognizable under 42 U.S.C. § 1983 if ‘a judgment in

favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence,’

unless the prisoner can demonstrate that the conviction or sentence has previously been

invalidated.” Edwards v. Balisok, 520 U.S. 641, 643 (1997) (quoting Heck, 512 U.S. at

487). The Heck bar applies to a state prisoner’s § 1983 action “no matter the relief sought

(damages or equitable relief), no matter the target of the prisoner’s suit (state conduct

leading to conviction or internal prison proceedings) – if success in that action would

necessarily demonstrate the invalidity of confinement or its duration.” Wilkinson v.

Dotson, 544 U.S. 74, 81-82 (2005) (parentheses and emphasis in original).

The plaintiffs allege that Maryland’s statutory scheme governing parole violates the

Eighth Amendment to the United States Constitution and Article 25 of the Maryland

Constitution because it “imposes life sentences upon minors without appropriate

consideration of their distinctive attributes as youth, and . . . fails to provide them a

meaningful and realistic opportunity for release.” Compl. ¶ 7. As a result of this statutory

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scheme, the plaintiffs contend, they are being confined subject to “de facto life-withoutparole sentences” that impose “unconstitutionally disproportionate punishment in violation of the Eighth Amendment and Article 25.” Compl. ¶ 63. Thus, although the plaintiffs do not seek immediate release from confinement, their § 1983 claims for relief must be dismissed because a judgment in their favor would “necessarily imply the invalidity of . . . [their] sentence[s].” Heck, 512 U.S. at 487; see also Wilkinson, 544 U.S. at 81 (explaining that Heck bars prisoners’ suits that “seek to invalidate the duration of their confinement – either directly through an injunction compelling speedier release or indirectly through a judicial determination that necessarily implies the unlawfulness of the State’s custody”).
The Heck bar applies to a state prisoner’s action challenging his conviction or sentence on procedural grounds where “the nature of the challenge to the procedures could be such as necessarily to imply the invalidity” of the conviction or sentence. Edwards, 520 U.S. at 645. In Edwards, for example, the Court held that Heck barred a prisoner’s § 1983 claim for damages and declaratory relief challenging the procedures employed in a disciplinary hearing, because the alleged procedural defect – bias by the decision maker – “would, if established, necessarily imply the invalidity of the deprivation of his good-time credits.” Id. at 646. The Court distinguished procedural claims that do “not call into question the lawfulness of the plaintiff's continuing confinement” from claims where the procedural challenge necessarily implies the invalidity of a judgment or sentence. Id. at 646 (quoting Heck, 512 U.S. at 483 (emphasis omitted in Edwards)).
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In accordance with this distinction, in Wilkinson, the Court held that Heck did not bar challenges brought by two prisoners alleging that certain procedures employed in their parole proceedings violated the Constitution. In that case, the prisoners asserted Ex Post Facto Clause and due process challenges to prison officials’ use of harsher parole guidelines that were adopted after the prisoners began to serve their sentences and other alleged procedural irregularities. Id. at 76-77. Both prisoners sought declaratory relief and injunctions ordering prison officials to grant them new parole hearings conducted under constitutionally proper procedures. Id. Their action was not barred by Heck, the Court explained, because the prisoners challenged the procedures employed by the State but did not challenge the resulting denial of parole, nor did their challenge to the procedures at issue necessarily imply the invalidity of their continued confinement subject to their paroleeligible sentences. Id. at 81-82.
Here, in contrast, although the plaintiffs identify allegedly faulty parole procedures employed by the State as applied to them, they expressly allege that as a result of the State’s application of its “policies and practices” their parole-eligible sentences have been “convert[ed] . . . into de facto life-without-parole sentences” that “subjects them to unconstitutionally disproportionate punishment in violation of the Eighth Amendment and Article 25.” Compl. ¶ 63. Thus, they are not alleging merely that the State employed improper procedures, but rather that the State’s current procedures necessarily have rendered their underlying sentences unconstitutional. Because the plaintiffs seek a judicial determination that they are currently serving unconstitutional sentences, a judgment in their
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favor “would necessarily imply the invalidity” of those sentences. Heck, 512 U.S. at 487. Rather than challenge the validity of their sentences through a § 1983 action, the plaintiffs “must file a petition for a writ of habeas corpus . . . and thus must exhaust state remedies, see 28 U.S.C. § 2254(b)(1)(A).” District Att’y’s Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 75 (2009) (Alito J., concurring); see, e.g., In re Wright, __ F.3d __, 2016 WL 3409851, at *4 (4th Cir. June 21, 2016) (evaluating a challenge to the execution of a state prisoner’s sentence under 28 U.S. § 2254).6 III. ALL CLAIMS ARE BARRED BY THE STATUTE OF LIMITATIONS.
The plaintiffs’ claims should be dismissed as untimely under the applicable statute of limitations. “Statutes of limitations defenses are recognized as appropriate grounds for granting a motion to dismiss where,” as here, “the defense is apparent from the face of the complaint.” Wright v. United States Postal Serv., 305 F. Supp. 2d 562, 563 (D. Md. 2004) (citing Pantry Pride Enterprises, Inc. v. Glenlo Corp., 729 F.2d 963, 965 (4th Cir. 1984)).
A. Principles Governing Statute of Limitations for § 1983 Claims For a claim under 42 U.S.C. § 1983, federal courts borrow the State’s general personal injury limitations period, which in Maryland is three years. Jersey Heights Neighborhood Ass’n v. Glendening, 174 F.3d 180, 187 (4th Cir. 1999) (citing Md. Code Ann., Cts. & Jud. Proc. § 5-101). Determining when the plaintiffs’ cause of action accrued, however, is a matter of federal law. Nasim v. Warden, Md. House of Corr., 64 F.3d 951,
6 The State’s post-conviction procedure is set forth in Title 7 of the Criminal Procedure Article of the Maryland Code.
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955 (4th Cir. 1995) (en banc). A claim under § 1983 “accrues when the plaintiff ‘knows or has reason to know of the injury which is the basis of the action,’” A Society Without a Name v. Virginia, 655 F.3d 342, 348 (4th Cir. 2011) (citation omitted); that is, “a cause of action accrues when the plaintiff possesses sufficient facts about the harm done to him that reasonable inquiry will reveal his cause of action,” Nasim, 64 F.3d at 955 (citing United States v. Kubrick, 444 U.S. 111, 122-24 (1979)); see also Wallace v. Kato, 549 U.S. 384, 391 (2007) (applying to § 1983 claim ‘“the traditional rule of accrual” that “the tort cause of action accrues . . . when the wrongful act or omission results in damages. . . . even though the full extent of the injury is not then known or predictable”).
B. Principles Governing Statute of Limitations for Claims Under Article 25 of the Maryland Declaration of Rights
Maryland’s general three-year statute of limitation would also apply to the plaintiffs’ state law claims under Article 25 of the Maryland Declaration of Rights, see Doc. 1, Compl. ¶¶ 175−180 and 185. Barnhill v. Strong, Civil No. JFM 07–1678, 2008 WL 544835 at *2 (D. Md. 2008) (citing Davidson v. Koerber, 454 F. Supp. 1256, 1260 (D. Md. 1978)); id. at *3 (“Other than [the default limitations statute], there is no statute addressing limitations on actions alleging a violation of art. 24 of the Declaration of Rights or of the other federal and state constitutional provisions implicated in any inverse condemnation claim. Consequently, the general three year statute of limitations found in [the default statute] controls Plaintiff’s claim.” (quoting Electro-Nucleonics, Inc. v. Washington Suburban Sanitary Comm’n, 315 Md. 361, 374 (1989) (brackets in original)).
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To determine the accrual date for the state law claims, this Court will look to applicable Maryland law. See, e.g., Barnhill, 2008 WL 544835 at *2. Under Maryland law, a cause of action arises and the statute of limitations ordinarily begins to run “upon the occurrence of the alleged wrong,” Poole v. Coakley & Williams Const., Inc., 423 Md. 91, 131 (2011), that is, “when the legally operative facts permitting the filing of [a plaintiff’s] claims came into existence,” Heron v. Strader, 361 Md. 258, 264 (2000). However, Maryland courts recognize an exception, known as the “discovery rule,” which effectively results in a formula for accrual that is equivalent to the federal accrual principle: Maryland’s discovery rule ‘“tolls the accrual date of the action until such time as the potential plaintiff either discovers his or her injury, or should have discovered it through the exercise of due diligence.”’ Poole, 423 Md. at 131 (citation omitted).
C. The Same Statute of Limitations and Accrual Rules Apply to the Plaintiffs’ Prayer for Declaratory Relief.
The plaintiffs also invoke the federal Declaratory Judgments Act, 28 U.S.C. §§ 2201 − 2202, but that statute “is remedial only and neither extends federal courts’ jurisdiction nor creates any substantive rights.” CGM, LLC v. BellSouth Telecomm., Inc., 664 F.3d 46, 55 (4th Cir. 2011) (citing, inter alia, Skelly Oil Co. v. Phillips Petrol. Co., 339 U.S. 667, 671-72 (1950)). Therefore, the plaintiffs’ claims for declaratory relief are time-barred ‘“if relief on a direct claim would also be barred”’ under the applicable statute of limitations. International Ass’n of Machinists & Aero. Workers v. Tennessee Valley Auth., 108 F.3d 658, 668 (6th Cir. 1997) (quoting Stone v. Williams, 970 F.2d 1043, 1048 (2d Cir. 1992),
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cert. denied, 508 U.S. 906 (1993)). That is, a ‘“request for declaratory relief is barred to the same extent that the claim for substantive relief on which it is based would be barred.’” CGM, LLC, 664 F.3d at 55-56 (quoting International Ass’n of Machinists, 108 F.3d at 668); accord Algrant v. Evergreen Valley Ltd. P’ship, 126 F.3d 178, 181 (3d Cir. 1997) (summarizing decisions from the First, Sixth, Ninth and Tenth Circuits, all of which have “held that an action for declaratory relief will be barred to the same extent the applicable statute of limitations bars the concurrent legal remedy”).
Maryland courts adhere to the same rule barring declaratory relief to the same extent substantive claims would be time-barred. See Commercial Union Ins. Co. v. Porter Hayden Co., 116 Md. App. 605, 658-59 (1997) (citations omitted); see, e.g., Bacon v. Arey, 203 Md. App. 606, 657-59 (2012) (affirming trial court’s dismissal for untimeliness of tort and constitutional claims, including claims for declaratory relief, based on application of the same three-year general statute of limitations and finding that the declaratory judgment claim and other prayers for relief on constitutional claims accrued simultaneously and the limitations period for each expired simultaneously).
D. The Plaintiffs’ Allegations Confirm That All of Their Claims Are Untimely Under the Applicable Three-Year Statute of Limitations.
Under the pertinent three-year statute of limitations and “discovery rule” for accrual, all of the plaintiffs’ federal and state law claims are time-barred because, according to the complaint, the plaintiffs knew the facts necessary to pursue their cause of action two decades ago. The gravamen of the plaintiffs’ claims consists of their assertion that their
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sentences to life with eligibility for parole were, in effect, converted to life without parole due to a former governor’s 1995 adoption of a policy against granting parole to prisoners serving a life sentence. As the complaint alleges, in 1995, then-Governor Glendening announced publicly that he did not intend to grant parole to anyone serving a life sentence unless the prisoner was very old or terminally ill. Compl. ¶¶ 105, 106. At the time of that 1995 announcement, the individual plaintiffs were prisoners serving life sentences, as was the founder of plaintiff MRJI, Walter Lomax. Compl. ¶¶ 16–19, 108. In fact, Mr. Lomax’s understanding that a cause of action had accrued at the time of Governor Glendening’s announcement was demonstrated by the filing of a court challenge to the policy, which was considered and rejected by the Maryland Court of Appeals in a 1999 decision that is cited repeatedly in the complaint. Lomax v. Warden, 356 Md. 569 (1999). Compl. ¶ 108.
Therefore, as early as 1995, the plaintiffs’ claims accrued because they “kn[ew] or ha[d] reason to know of the injury which is the basis of the action,’” A Society Without a Name, 655 F.3d at 348; accord Poole, 423 Md. at 131; they “possesse[d] sufficient facts about the harm” caused to them by the policy so that “reasonable inquiry w[ould] reveal [their] cause of action,” Nasim, 64 F.3d at 955; and, as confirmed by the complaint, “the legally operative facts permitting the filing of [plaintiff’s] claims came into existence” by 1995, Heron, 361 Md. at 264. Even if the 1995 announcement that is the centerpiece of the complaint could somehow be deemed insufficient to alert the plaintiffs to their injury, they had ample opportunity in the ensuing years to comprehend and act upon their cause of action long before the three years that preceded the filing of this suit. Certainly, plaintiff
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Calvin McNeill’s claim had accrued by 2011, when then-Governor O’Malley rejected without comment the 2008 recommendation of the Parole Commission that his sentence be commuted. Compl. ¶ 126. Similarly, plaintiff Kenneth Tucker has long been aware of his alleged injury, given that he declined his parole hearing in 1996 and declined to attend a parole hearing until 2014, because “he did not see much point to reinstating hearings when no lifers were being paroled.” Compl. ¶ 142. Plaintiff Nathaniel Foster also acknowledges that he was aware of his injury more than three years before the filing of this lawsuit; the complaint alleges that in 2005 “Mr. Foster was told ‘off the record’ that the Governor was not going to sign any lifer parole papers,” and his next hearing was set for three years later. Compl. ¶ 159. The complaint further alleges that, on Mr. Foster’s request for reconsideration, Chairman Blumberg informed him “on August 15, 2007” – some 8⅔ years before this suit was filed – that the Parole Commission saw “no basis to change its decision.” Compl. ¶ 160.
For these reasons, the plaintiffs’ federal and state law claims are barred because the complaint was filed more than three years after the claims accrued.
E. The Statute of Limitations Is Not Tolled Due to the Existence of Adverse Precedent That Might Have Prevented the Plaintiffs from Prevailing.
Although the plaintiffs may contend that their claims are timely because the availability of the theory on which they rely was unclear prior to the Supreme Court’s 2016 Montgomery decision (holding that that the rights of juveniles recognized in Graham and Miller must be applied retroactively), the Fourth Circuit has rejected the notion that a
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statute of limitations could be tolled due to “the unfavorable precedent that would have governed [plaintiffs’] claim had [they] sued prior to” the issuance of a new decision that is more favorable to their claim. Whiteside v. United States, 775 F.3d 180, 185 (4th Cir. 2014) (en banc), cert. denied, 135 S. Ct. 2890 (2015) (holding prisoner’s motion to vacate, set aside, or correct sentence was time barred by applicable limitations and rejecting his equitable tolling argument that, prior to a new 4th Circuit decision, he had been “prevented from timely filing by the unfavorable precedent that would have governed his claim”). Whiteside held that the existence of prior adverse precedent, together with the lack of the necessary legal support for a prisoner’s claim until the new precedent was created, did not constitute an ‘“extraordinary circumstance [that] stood in [the prisoner’s] way and prevented timely filing”’ for purposes of equitable tolling. Id. at 184 (quoting Holland v. Florida, 560 U.S. 631, 649 (2010)).
Nor does new precedent cited by a prisoner constitute “a new ‘fact’” for purposes of determining the accrual date for the statute of limitations, id. at 183; rather, “[a] decision ‘establishing an abstract proposition of law arguably helpful to the petitioner’s claim does not constitute the ‘factual predicate’ for that claim,’” id. at 184 (citation omitted). In so holding, the Fourth Circuit relied on Supreme Court precedent emphasizing that “futility cannot constitute cause” for a procedural default. Id. at 185 (quoting Bousley v. United States, 523 U.S. 614, 623 (1998) (other citation omitted)). Whiteside also relied on prior Fourth Circuit precedent that reached the same conclusion. 775 F.3d at 185 (citing Minter v. Beck, 230 F.3d 663, 666 (4th Cir. 2000) (rejecting equitable tolling based on prisoner’s
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argument that unfavorable precedent had previously barred his claim and stating that “futility . . . is not a valid justification for filing an untimely . . . petition”)).
Even if Fourth Circuit precedent did not so clearly preclude the plaintiffs here from escaping the statute of limitations by relying on the recent issuance of Montgomery, Supreme Court and Fourth Circuit precedent holds that, under the special exception Congress has created to allow a habeas petition to be based on a right established by new precedent, the meaningful date for accrual purposes would be ‘“the date on which the right asserted was initially recognized by the Supreme Court,’” not the date of any subsequent decision in which the right was “made retroactively applicable. . . .” Dodd v. United States, 545 U.S. 353, 357-59 (2005) (quoting 28 U.S.C. § 2255(f)(3)); followed in United States v. Mathur, 685 F.3d 396, 398 (4th Cir. 2012); see id. at 403-04 (Niemeyer, J., concurring) (explaining Dodd).7 Therefore, even if the plaintiffs had availed themselves of the habeas statute and filed a petition under § 2254 rather than a § 1983 complaint, their claims would
7 28 U.S.C. § 2255(f)(3) authorizes prisoners in federal custody to file a motion to vacate, set aside or correct a sentence based on new Supreme Court precedent within one year from “the date on which the right asserted was initially recognized by the Supreme Court,” id., but the Supreme Court has held that the one-year statute of limitations runs from the date the right was first recognized by Supreme Court, not the date of a subsequent Supreme Court decision making the right retroactive. Dodd, 545 U.S. at 357-59. A substantively identical provision governs habeas petitions by state prisoners. 28 U.S.C. § 2244(d)(1)(C) (“The [one-year] limitation period shall run from the latest of . . . the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review. . . .”). See, e.g., Ly v. Beard, No. 15-70939, __ F. App’x __, 2016 WL 331881, *2 (9th Cir. June 15, 2016) (applying Dodd to interpretation of § 2544(d)(1)(C)).
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be time-barred under 28 U.S.C. § 2244(d)(1) because Montgomery merely “made retroactively applicable” a right recognized in the 2012 Miller decision, which was decided four years earlier. To the extent the plaintiffs’ claims also rely heavily on Graham, it was decided even earlier, in 2010, some six years before the commencement of this suit.
F. The Plaintiffs Cannot Satisfy the Requirements for the Continuing Violation Exception.
Finally, the plaintiffs cannot satisfy the “continuing violation” exception to accrual for limitations purposes because, according to their complaint, during more than three years prior to the filing of this lawsuit they did not experience new violations of law but, at most, experienced the continuing ill effects of known policies adopted much earlier. Under both Fourth Circuit precedent and decisions of Maryland state courts, a ‘“continuing violation is occasioned by continual unlawful acts, not continual ill effects from an original violation.”’ Jersey Heights, 174 F.3d at 189 (quoting National Advertising Co. v. City of Raleigh, 947 F.2d 1158, 1166 (4th Cir. 1991)). That is, “the continuing ill effects from an original violation . . . do not constitute a continuing violation.” 8 A Society Without a Name,
8 Thus, in Jersey Heights, the Fourth Circuit rejected plaintiffs’ continuing violation theory because their claims rested “on the alleged ongoing effects of the original decision to locate the highway in proximity to Jersey Heights” and they “cite[d] no discrete acts of discrimination . . . within the limitations period,” 174 F.3d at 189; in National Advertising, the continuing violation exception was held not to apply because the alleged unconstitutional taking “occurred at the time of the ordinance’s enactment” and “what continued was the ill effect of the ordinance’s enactment and the alleged taking,” 947 F.2d at 1166; and in A Society Without a Name, the continuing violation exception invoked as to certain claims was rejected because the plaintiff’s objection to the relocation of homeless services away from downtown Richmond “amount[ed] to the continuing effect of the original decision to locate” the service center where it continued to stand, 655 F.3d at 349.
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655 F.3d at 348; accord Bacon, 203 Md. App. at 662 (“Continuing violations that qualify under this theory are continuing unlawful acts, . . . not merely the continuing effects of a single earlier act” and the “continuing tort doctrine’ requires that a tortious act – not simply the continuing ill effects of prior tortious acts – fall within the limitation period. . . .” (citation omitted)).
Although the continuing violation exception may apply “if the plaintiff can show that the illegal act did not occur just once, but rather ‘in a series of separate acts[,] and if the same alleged violation was committed at the time of each act,” A Society Without a Name, 655 F.3d at 348 (citation omitted), the Fourth Circuit has also cautioned that the continuing violation theory ‘“should not provide a means of relieving plaintiff from its duty of reasonable diligence in pursuing its claims,”’ National Advertising, 947 F.3d at 1168 (citation omitted). Accordingly, if a plaintiff “was in a position to challenge” a law or policy at the time of its adoption, then “statute of limitations policies militate against finding a continuing violation.” Id.; accord Cowell v. Palmer Twp., 263 F.3d 286, 295 (3d Cir. 2001); Moskowitz v. Trustees of Purdue Univ., 5 F.3d 279, 281-82 (7th Cir. 1993).
In prisoner cases analogous to this one, courts have repeatedly rejected attempts to assert a continuing violation as a way of overcoming the applicable statute of limitations. Thus, in two Eleventh Circuit decisions, the continuing violation theory was rejected where prisoners filed suit, in 2002 and 2001, respectively, to challenge a 1995 change in policy that diminished the frequency with which the prisoners would be considered for parole. Brown v. Georgia Bd. of Pardons & Paroles, 335 F.3d 1259, 1262 (11th Cir. 2003); Lovett
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v. Ray, 327 F. 3d 1181 (11th Cir. 2003). These decisions concluded that the resetting of a parole hearing or the period of delay caused by a deferred parole hearing due to a policy change did not constitute either a “continuing violation of [the prisoner’s] constitutional rights against Ex Post Facto laws” or an injury “separate and distinct” from “the original decision” to establish the policy and apply it retroactively to the prisoner. Brown, 335 F.3d at 1260-61; Lovett, 327 F. 3d at 1183 (“[T]he defendants’ act (deciding not to consider Lovett for parole again until 2006) was a one time act with continued consequences, and the limitations period is not extended.” (parentheses in original)). As Brown explained,
Each time Brown’s parole reconsideration hearing is set, it does not amount to a distinct and separate injury. . . . Rather, Brown’s injury, to the extent it ever existed, was when the Georgia Parole Board applied its new policy, eliminating the requirement of parole review every three years for Brown, retroactively. It is the decision in 1995 that forms a potential basis for Brown’s claim. It was also at this point that Brown could have discovered the factual predicate of his claim. The successive denials of parole do not involve separate factual predicates and therefore do not warrant separate statute-of-limitations calculations. 335 F.3d at 1261-62 (citation omitted). The holding in Brown has been applied in cases affirmed by the Fourth Circuit. See Liverman v. Johnson, No. 3:07-cv-344, 2008 WL 2397544, *2 (E.D. Va. 2008) (applying Brown), aff’d, 318 F. App’x 166 (4th Cir. 2009) (unpublished per curiam); Downey v. Johnson, No. 3:08-cv-199, 2009 WL 150667, *2 (E.D. Va. 2009) (applying Brown), aff’d, 326 F. App’x 131 (4th Cir. 2009) (unpublished per curiam). Similar conclusions have been reached in other belated prisoner challenges to changes in policies or statutes. For example, in Porter v. Ray, 461 F.3d 1315 (11th Cir.
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2006), the Court rejected a continuing violation argument raised by prisoners who brought suit in 2002 to challenge an alleged “de facto” policy regarding parole eligibility that had been applied to them, with their knowledge, as early as 1996. The Court found no merit in “the appellants’ argument that they suffer a continuing violation each day they are imprisoned beyond [the statutory minimum time for parole eligibility] or the [tentative parole month] dictated by the [Parole Board’s Parole Decision] Guidelines,” and the Court further found that their claims were untimely because “any injury that the [plaintiffs] suffered was a one-time injury that occurred in 1996 or 1998 when they learned that they would have to serve sentences longer than [the statutory minimum for parole eligibility] and greater than the Guidelines dictated.” Id. at 1324.
In Broom v. Strickland, 579 F.3d 553 (6th Cir. 2009), the court dismissed as untimely a death row inmate’s suit challenging the State’s lethal injection protocol and rejected the prisoner’s continuing violation argument. As the court explained, “Broom has not alleged ‘continual unlawful acts,’ but rather challenges the effects from the adoption of the lethal-injection protocol. In essence, he has presented no continued wrongful conduct, only the continued risk of future harm.” Id. at 555-56.
Just as those cases held that the complaint’s untimeliness could not be excused by resort to a continuing violation theory, here the plaintiffs, according to their own allegations, are complaining of the continuing effects of what they describe as longstanding policies that were first applied to them, with their knowledge, in the mid-1990s. Their
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continued serving of sentences imposed years earlier does not provide a basis for treating the policy changes of the 1990s as continual or repeated unlawful acts. IV. THE COMPLAINT FAILS TO STATE A CLAIM UPON WHICH RELIEF MAY
BE GRANTED. A. The Plaintiffs’ Allegations Fail to State a Plausible Claim Under
the Eighth and Fourteenth Amendments or Article 25 of the Maryland Declaration of Rights. The Supreme Court has not recognized a federal cause of action of the type that plaintiffs attempt to assert here: that a constitutional sentence of life with the possibility of parole imposed on a juvenile can be transformed by the alleged action or inaction of executive officials into an unconstitutional sentence of life without the possibility of parole. Nor does any Maryland authority support the plaintiffs’ purported claims under Article 25 of the Maryland Declaration of Rights.9 Even if such a claim could be asserted, no such violation occurred in the plaintiffs’ cases. First, the holdings of Graham, Miller, and Montgomery do not apply to plaintiffs because those cases involved the imposition of criminal sentences, and plaintiffs make no argument that the sentences they actually received are unconstitutional. Second, both the Supreme Court and the Court of Appeals of Maryland have insisted that there is a substantial difference between the exercise of the executive’s powers of clemency and the executive’s power to grant parole. Solem v. Helm, 463 U.S. 277, 301 (1983); State ex rel. Murray v. Swenson, 196 Md. 222, 229 (1950).
9 The Court of Appeals of Maryland has “consistently construed [Articles 16, 24, and 25 of the Declaration of Rights] as being in pari materia with their Federal counterparts.” Evans v. State, 396 Md. 256, 327 (2006).
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Under the jurisprudence of both courts, the plaintiffs received constitutional sentences of life imprisonment with the possibility of parole under a system that grants them meaningful opportunity to prove that they are entitled to be released before the end of their natural lives. No more is required.
The plaintiffs mistakenly equate the Governor’s role in the parole process with the Governor’s exercise of his power to exercise clemency to pardon an individual or remit part of a sentence of imprisonment without the remission operating as a full pardon. “As a matter of law, parole and commutation are different concepts, despite some surface similarities.” Solem, 463 U.S. at 300. “A parole is a conditional release from imprisonment which entitles the grantee to leave the institution in which he is imprisoned, and to serve the remainder of his term outside the confines thereof, if he shall satisfactorily comply with all the terms and conditions provided in the parole order.” State ex rel. Murray, 196 Md. at 229. “Generally, a pardon is an act of clemency, evidenced by an executive order signed by the Governor, absolving the convict from the guilt of his criminal acts and exempting him from any pains and penalties imposed upon him therefor by law.” Id. Unlike the systems in some States, including the Florida scheme at issue in Graham, Maryland’s parole process is available to plaintiffs who have been sentenced to life imprisonment with parole, without the necessity of prior exercise of the Governor’s power to pardon. See, e.g., State v. Castaneda, 842 N.W.2d 740, 758 (Neb. 2014) (“Nebraska’s parole system has absolutely no application to Castaneda unless and until executive clemency in the form of sentence commutation is granted.”); Bonilla v. State, 791 N.W.2d 697, 701 (Iowa 2010)
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(“[A]n individual convicted of a class ‘A’ felony will be sentenced to life and ‘shall not be released on parole unless the governor commutes the sentence to a term of years.’”); id. (“Bonilla was sentenced to life in prison and does not have the possibility of parole other than commutation by the governor.”); Bear Cloud v. State, 294 P.3d 36, 45 (Wyo. 2013) (“Thus, the only way that a person serving a life sentence according to law may become eligible for parole in Wyoming is if the governor commutes the life sentence to a term of years.”).
In Graham, the Court held that the Eighth Amendment bars life-without-parole sentences for juveniles convicted of non-homicide offenses. Because Florida had abolished its parole system, the juvenile offender’s sentence was, in effect, a sentence of life without parole, and his only hope of obtaining release was by the exercise of executive clemency. Graham, 560 U.S. at 57. A sentence of life without parole, the Court observed, “alters the offender’s life by a forfeiture that is irrevocable. It deprives the convict of the most basic liberties without giving hope of restoration, except perhaps by executive clemency, the remote possibility of which does not mitigate the harshness of the sentence.” Graham, 560 U.S. at 69-70. Juvenile offenders, the Court held, must be afforded a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation” before the end of their lives. Graham, 560 U.S. at 75. The Court cautioned, however, that “[a] State is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime.” Id.
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In Miller, the Court held that a mandatory sentence of life without parole for a juvenile convicted of a homicide offense violates the Eighth Amendment. Miller, 132 S. Ct. at 2469. The Court did not, however, categorically preclude the imposition of life without parole on juvenile homicide offenders; it may be imposed on those juveniles whose crimes “reflect irreparable corruption.” Miller, 132 S. Ct. at 2469. The Court required, however, that the sentencing authority, be it judge or jury, have the discretion “to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison,” before imposing a sentence of life without parole. 132 S. Ct. at 2469.
The Supreme Court in Montgomery held that the sentencing proscription announced in Miller applied not just to defendants sentenced after the opinion in Miller was issued, but to any individual serving a mandatory life sentence without parole for a homicide committed as a juvenile. “A State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them.” Id., 136 S. Ct. at 736. The Court contemplated that extending parole eligibility to juvenile offenders would not “impose an onerous burden on the States” because “prisoners who have shown an inability to reform will continue to serve life sentences,” id., while the “opportunity for release will be afforded to those who demonstrate the truth of Miller’s central intuition that children who commit even heinous crimes are capable of change.” Id.
The three Supreme Court cases, taken together, prohibit the State from “making the judgment at the outset” – i.e., at sentencing – that juvenile offenders “never will be fit to
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reenter society,” absent a finding by the sentencing court that the defendant’s crime “reflects irreparable corruption.” Graham, 560 U.S. at 36 (emphasis added); Miller, 132 S. Ct. at 2469. See People v. Gutierrez, 324 P.3d 245, 249 (Cal. 2014) (upholding statute that confers discretion on a trial court to sentence a 16- or 17-year–old juvenile convicted of special circumstance murder to life without parole or to 25 years to life, and requiring sentencing judge to consider the “‘distinctive attributes of youth’ and how those attributes ‘diminish the penological justifications for imposing the harshest sentences on juvenile offenders’ before imposing life without parole on a juvenile offender”); id. at 262 (“Under Miller, a state may authorize its courts to impose life without parole on a juvenile homicide offender when the penalty is discretionary and when the sentencing court’s discretion is properly exercised in accordance with Miller.”); People v. Holman, __ N.E.3d __, 2016 WL 868413, at *9 (Ill. App. Ct. 2016) (explaining that “although the Miller Court did require sentencing courts to consider mitigating circumstances related to a juvenile defendant’s youth [before imposing a sentence of life without parole for a homicide offense], it did not require courts to consider any set list of factors”); State v. Long, 8 N.E.3d 890, 893 (Ohio 2014) (holding that a sentencing court is not required to consider any list of factors before sentencing a juvenile offender to life without parole but must consider youth to be a mitigating factor when imposing sentence and that “when the court selects this most serious sanction, its reasoning for the choice ought to be clear on the record”).
Thus, Montgomery, Miller, and Graham address the “sentencer’s ability” to make the judgment in a homicide case that a defendant should never be eligible for parole, and
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they hold that a sentencer may impose a life-without-parole sentence on a juvenile only after “tak[ing] into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” Miller, 132 S. Ct. at 2469 (emphases added).
The limitation of the holding in these cases to criminal sentencings, rather than parole proceedings, is consistent with well-settled precedent that the granting or denying of parole is an executive decision, the merits of which are not subject to review by the Court. Swarthout v. Cooke, 562 U.S. 216, 222 (2011). “There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence,” Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7-8 (1979), and “[d]ecisions of the Executive Branch, however serious their impact, do not automatically invoke due process protection . . .,” id. at 7. “This is especially true with respect to the sensitive choices presented by the administrative decision to grant parole release,” which “differs from the traditional mold of judicial decision-making” because it “involves a synthesis of record facts and personal observation filtered through the experience of the decision maker and leading to a predictive judgment as to what is best both for the individual inmate and for the community.” Id. at 8. See also Gaston v. Taylor, 946 F.2d 340, 344 (4th Cir. 1991) (stating that the decision whether to grant parole is a discretionary one, and “a prisoner cannot claim entitlement and therefore a liberty interest in the parole release”).
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Thus, the Fourth Circuit and other federal courts have rejected constitutional claims, similar to those plaintiffs bring here, that challenge alleged “blanket” or “unwritten” policies to deny parole to offenders serving sentences for serious crimes. Burnette v. Fahey, 687 F.3d 171, 183 (4th Cir. 2012) (affirming dismissal of due process and ex post facto claims brought against Virginia parole officials for adopting de facto policy of denying parole to persons incarcerated for violent offenses; noting that each of the inmates “was convicted of a very serious crime or crimes, that the lightest sentence given to any of the inmates was eighty years’ imprisonment, and that “it would be well within the [Parole] Board’s discretion to consider such a prisoner holistically and nevertheless to determine that he or she has not served a sufficiently lengthy sentence in light of the grave crime”); Graziano v. Pataki, 689 F.3d 110, 115-17 (2nd Cir. 2012) (affirming dismissal of due process, equal protection, and ex post facto claims of inmates brought against Governor of New York and state parole officials for allegedly denying parole to violent felony offenders based on “unwritten policy” to focus on violent nature of their crimes without proper consideration of other mandated factors).
The fact that the plaintiffs were juveniles at the time they committed their offenses does not render these principles of judicial deference inapplicable to their cases. Indeed, in its decisions addressing the need for juveniles to be afforded opportunities for early release, the Supreme Court has emphasized that “[i]t is for the State, in the first instance, to explore the means and mechanisms for compliance” with the guidance provided by these decisions. Graham, 560 U.S. at 75. Even in cases where a juvenile defendant did receive
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a mandatory sentence of life without the possibility of parole for a homicide offense, a State “may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them.” See Montgomery, 136 S. Ct. at 718 (citing Wyo. Stat. Ann. § 6-10-301(c) (2013) (providing that juvenile homicide offenders are eligible for parole after serving 25 years in prison). Here, the plaintiffs have received consideration for parole, and that is all the Supreme Court decisions require. Contrary to the plaintiffs’ beliefs, the Eighth Amendment does not require the State to produce data demonstrating that a certain percentage or number of juvenile offenders has been paroled. The Eighth Amendment only “prohibits a State from imposing a life without parole sentence on a juvenile nonhomicide offender,” Graham, 560 U.S. at 75, or imposing such a sentence on a juvenile convicted of a homicide offense absent a finding of “irreparable corruption,” Miller, 132 S. Ct., at 2469; the Constitution “does not require the State to release that offender during his natural life,” Graham, 560 U.S. at 75.
In contrast to the juvenile offenders in Graham, Miller, and Montgomery, none of the plaintiffs in this case received a sentence of life without the possibility of parole or even received a mandatory sentence. Instead, each plaintiff received a sentence of life with the possibility of parole after serving 15 years less any diminution credits. Nor was the imposition of a fully-executed life sentence mandatory because, as with any criminal defendant convicted of first-degree murder, the judges who sentenced the plaintiffs had the discretion to conditionally suspend the execution of a life sentence or any portion of it in favor of a period of probation. Cathcart, 397 Md. at 328; Wooten, 277 Md. at 115. Indeed,
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the plaintiffs acknowledge that their life sentences with the possibility of parole, when imposed, were constitutional. For this reason alone, they have failed to state an Eighth Amendment violation.
The plaintiffs are also wrong to suggest that Maryland’s parole system is unconstitutional because it requires the Governor’s approval of the Parole Commission’s decision to parole an inmate serving a life sentence. In Swarthout, the Supreme Court rejected due process claims brought by two prisoners, one of whom was denied parole after the Governor reversed the Parole Board’s decision that the prisoner was suitable for parole. In doing so, the Court reiterated that, “[t]here is no right under the Federal Constitution to be conditionally released before the expiration of a valid sentence, . . . the States are under no duty to offer parole to their prisoners,” and that, even when state law creates a liberty interest in parole, the “procedures required are minimal.” Swarthout, 562 U.S. at 220. Although California’s system differs from Maryland’s in that it permits, but does not require, Governor-approval of a parole board decision for an inmate serving a life sentence, the plaintiffs have failed to identify any authority for their apparent assertion that the chief executive of the State may not constitutionally participate in the executive function of parole consideration. Additionally, to the extent plaintiffs are concerned with apparent delays in the Governor’s review of parole recommendations, the General Assembly has already addressed those concerns by amending the parole statute to provide that a decision by the Parole Commission to parole a lifer who has served 25 years in prison is effective if
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the Governor does not disapprove the decision within 180 days of receiving it. See Corr. Servs. § 7-301(d)(5).
B. The Plaintiffs’ Allegations Demonstrate That They Are Being Provided Meaningful Opportunities for Release.
Even if the holdings of the Supreme Court in its cases involving juvenile defendants sentenced to serve life without the possibility of parole were applicable to this conditionsof-confinement action involving prisoners serving parolable life sentences, the allegations contained in the complaint, as well as the evidence submitted with this motion, demonstrate that the plaintiffs have been provided meaningful opportunities for release from prison in compliance with the Eighth Amendment.
In holding that the Constitution forbids the mandatory sentencing of a juvenile offender to a term of life without the possibility of parole for a homicide offense, the Supreme Court was careful to insist that the Eighth Amendment “‘does not require the State to release that offender during his natural life.’” Miller, 132 S. Ct. at 2469 (quoting Graham, 560 U.S. at 75). Rather, State is required to provide “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Id. Moreover, “[i]t is for the State, in the first instance, to explore the means and mechanisms for compliance.” Graham, 560 U.S. at 75. Those “means and mechanisms” do not “require the State to release [the] offender during his natural life,” id., but to allow the prisoner to demonstrate that he has “atone[d] for his crimes and learn[ed] from his mistakes,” so that parole officials may determine if he is “fit to reenter society.” Id.
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The complaint does not contain “sufficient factual matter, accepted as true, to state a claim to relief” against the defendants under the Eighth Amendment “that is plausible on its face.” Iqbal, 556 U.S. at 678 (internal quotations and citation omitted). That is, the allegations do not allow the Court to “draw the reasonable inference that the defendant[s] [are] liable for the misconduct alleged.” Id. On the contrary, the facts as alleged by the plaintiffs, even without resort to the evidentiary materials supplied by the defendants, demonstrate that the plaintiffs have had, and continue to have, meaningful and realistic opportunities to obtain release.
1. Calvin McNeil Mr. McNeil alleges that he was sentenced to imprisonment for life under Maryland’s felony murder statute “for his role in a fatal robbery of a dice game that occurred in 1981, the day he turned 17 years old.” Compl. ¶¶ 120, 122. He is now 51 years old. Compl. ¶ 121. During his incarceration, he “has taken advantage of every program available to him, earned positions of trust in employment, and taken leadership roles in programs to promote alternatives to violence within and outside [the Division].” Compl. ¶ 124. He has also “earned recognition from correctional officers and administrators who submitted letters of support on his behalf, including a commendation for helping to save someone’s life.” Compl. ¶ 124; see Compl. ¶ 132 (citing notation in Mr. McNeil’s case record that he had
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received his G.E.D, worked for State Use Industries, and served as “a facilitator for [the prison’s] Alternatives to Violence program”).10
As a result, “[i]n recognition of this strong record, in 2008, the Maryland Parole Commission recommended Mr. McNeill for commutation” of sentence. Compl. ¶ 125. After Governor O’Malley disapproved the recommendation in 2011, the Parole Commission scheduled his next hearing for 2015. Compl. ¶ 127. At that time, the two commissioners who conducted the hearing “told him they would be recommending him for a risk assessment,” but “as of the filing of suit Mr. McNeill has not been transferred [to Patuxent Institution] for the assessment,” due to the “lengthy waiting list for assessment at Patuxent[.]” Compl. ¶ 128.
Although Mr. McNeill contends that a Division policy precluding him from moving to a lower security level “where he would be able to participate in work release and family leave programs” has “denied [him] a meaningful opportunity for release,” Compl. ¶ 135, because he “is barred from developing skills that allow him to demonstrate his rehabilitation,” his own factual allegations refute that claim. As Mr. McNeil acknowledges, he has been afforded ample opportunities to attempt to demonstrate his rehabilitation. He has been placed in programs that allowed him to obtain his G.E.D., and
10 State Use Industries is the former name of Maryland Correctional Enterprises, a unit of the Division that provides work experience to inmates “for the purpose of improving [their] employability . . . on release,” in “an environment that resembles as closely as possible the environment of private sector business operations.” Corr. Servs. § 3-502(2) and (3).
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that gave him work experience to “improv[e] [his] employability . . . on release,” Corr. Servs. § 3-502(2), and he has been afforded the opportunity to participate in the prison’s alternatives to violence program. The State has thus fulfilled its constitutional duty to employ “means and mechanisms” to provide him with a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Miller, 132 S. Ct. at 2469.
Notably, Mr. McNeil does not allege any facts indicating that the Parole Commission has declined to recommend him for release because he has not participated in programming at lower security levels. On the contrary, the Parole Commission “recommend[ed] [him] for release” to commutation from his status as a medium security inmate, Compl. ¶ 129, and Mr. McNeil has thus failed to state any plausible claim that the Division’s security policies unconstitutionally hindered his ability to “demonstrate his rehabilitation.” Compl. ¶ 135. Governor O’Malley’s decision to decline the Parole Commission’s recommendation for release, without more, also does not state an Eighth Amendment violation, because constitutional compliance requires the State to provide a “meaningful opportunity to obtain release,” not to “guarantee eventual freedom.” Graham, 560 U.S. at 75; see Wershe v. Combs, No. 1:12-CV-1375, 2016 WL 1253036, at *4 (W.D. Mich. Mar. 31, 2016) (Graham “gives the State primary responsibility for determining how to provide” prisoners with “a meaningful opportunity to demonstrate that they are entitled to release based on maturity and rehabilitation,” and “does not allow courts to undertake a full review of the State’s parole procedures and substitute its own judgment for the State’s”).
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2. Kenneth Tucker Mr. Tucker “was sentenced to life with parole in 1974 at age 17” after being convicted of felony murder. Compl. ¶ 136. Mr. Tucker “participat[ed] in a robbery-murder with another teenager,” who killed the victim during the robbery. Id. During his incarceration, Mr. Tucker “earn[ed] his high school equivalency in 1975, an associate’s degree in 1989, and a bachelor’s degree in psychology in 1994.” Compl. ¶ 139. He has also participated in prison programs that allowed him to obtain “certification or training in several professions, including metal and wood work apprenticeships, clerical work, and food service sanitation.” Compl. ¶ 139. He “is currently an observation aide in [the Jessup Correctional Institution’s] hospital, where he provides consolation and coping strategies to terminally ill and mentally distressed peers.” Compl. ¶ 139. He is also “a member of [the institution’s] Scholars program and volunteers weekly as a mentor for other men.” Compl. ¶ 139. During parole hearings conducted between 1987 and 1993, parole commissioners noted Mr. Tucker’s good institutional adjustment, and recommended that Mr. Tucker progress to minimum security and work release. Compl. ¶ 140. After “Governor Glendening announced that he would not parole any lifer,” Compl. ¶ 142, Mr. Tucker “declined his parole hearing in 1996, believing the process was futile,” id., and thereafter “did not have any parole hearing again for nearly 20 years, until 2014, as he did not see much point to reinstating hearings when no lifers were being paroled.” Compl. ¶ 142. He did not thereafter request a parole hearing until 2014, when he did so “at the urging of his
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case manager.” Compl. ¶ 142. At that hearing, Mr. Tucker’s sixth, the commissioners who heard his case recommended that he receive a risk assessment at Patuxent Institution, Compl. ¶ 143, and based on the results of that assessment, they noted that a rehearing in January 2017 “would be more appropriate in [his] case.” Compl. ¶ 143. Mr. Tucker states that “[u]pon information and belief, the ‘primary [bases] for the commissioners’ refusal of parole’” were “static factors” that “do not take into account Mr. Tucker’s maturity, rehabilitation or institutional record,” but were instead based on “who he was as [sic] age 17, penalizing him for his youth, such as [his] being unmarried at the time of the offense.” Compl. ¶ 144.
Like Mr. McNeil, Mr. Tucker has been afforded a meaningful opportunity to participate in programming in the Division that could demonstrate to the Parole Commission the sufficient maturity and rehabilitation to warrant parole. Contrary to his claim, the Parole Commission considered, and noted, his good institutional progress in his earlier parole hearings, and to the extent that a parole decision was affected by Division security policies that prevented him from progressing to lower security, those restrictions no longer exist, because an inmate serving a sentence for a crime committed as a juvenile is “eligible for a reduction below medium or minimum security status when recommended by the Maryland Parole Commission for outside testing or work release[.]” Exhibit 2, OPS.100.0004.5.D. Mr. Tucker elected not to be considered for parole for nearly 20 years, based upon his apparent belief that during that time, no inmate serving a life sentence for a crime committed as a juvenile would be paroled. That belief was incorrect because such
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inmates were granted early release from prison by action of the Parole Commission and former governors. See Exhibit 1 ¶¶ 5-18.
To the extent Mr. Tucker and the other plaintiffs allege that the defendants have violated the Eighth Amendment by relying on certain risk assessment tools or other psychological testing, that allegation fails to state a claim for relief. In determining whether “an inmate is suitable for parole,” Corr. Servs. § 7-305, the Parole Commission is required to consider “whether there is reasonable probability that the inmate, if released on parole, will remain at liberty without violating the law,” id. at § 7-305(5), and “whether there is a substantial risk the individual will not conform to the conditions of parole.” COMAR § 12.08.01.18.A(2)(a). In making this determination, the Parole Commission considers, among numerous other criteria, “[a]ny reports or recommendations made by the sentencing judge, the institutional staff, or by a professional consultant such as a physician, psychologist, or psychiatrist.” COMAR § 12.08.01.18.A(3)(g). Mr. Tucker has not alleged any facts rising “above the speculative level,” Twombly, 550 U.S. at 555, to support his conclusory allegation that, in electing to re-hear him for parole consideration in 2017, the Parole Commission was “penalizing him for his youth” at the time he committed the crime, rather than merely determining from other information in the risk assessment that there was less than a reasonable probability that, if released on parole, he would conform his conduct to the law.
Nor have Mr. Tucker or the other plaintiffs alleged any facts demonstrating that the parole commissioners failed to take into account age at the time of offense when they
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considered the “circumstances surrounding the crime,” Corr. Servs. 7-305(1), or that the presiding commissioners did not assess “[w]hether the offender[s] . . . demonstrated emotional maturity and insight into [their] problems,” a consideration required by the Commission’s regulations since prior to 1995. COMAR § 12.08.01.18.A(3)(f). “In the absence of facts to the contrary, [the Court] cannot presume that the [Parole Commission] has failed to conform to constitutional requirements and its statutory mandate[.]” Burnette, 687 F.3d at 183.
3. Nathaniel Foster Mr. Foster alleges that “[i]n 1983, at 17 years old, [he] was involved in a botched robbery attempt along with his co-defendant, who was eight years his senior and is the father of his sister’s children,” and that “[d]uring the course of the robbery, the victim was killed.” Compl. ¶ 146. Mr. Foster was charged with first-degree murder and received a life sentence with the possibility of parole. Compl. ¶ 147. Mr. Foster contends that he “has an exemplary institutional record,” has pursued his education during his incarceration, “earning a place on the Dean’s List for his high grades while attending Coppin State University for Criminal Justice,” and has held a number of institutional jobs. Compl. ¶¶ 151, 152. Those jobs include working in the institutional canteen and the Officers’ Dining Room, and his current institutional assignment, which is lead office clerk in the Maryland Correctional Enterprises sheet metal shop, where he works “directly under the Plant Manager.” Compl. ¶ 152. He also serves as a volunteer at the prison hospital. Compl. ¶ 153.
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Mr. Foster acknowledges that he has received “six parole hearings in the last twenty years, in 1995, 2000, 2005, 2008, 2011 and 2013,” Compl. ¶ 155, and alleges that parole commissioners considering his case in the past have noted his good institutional record, expressed the need for him to progress to lower security, and indicated, in 2000, that he “need[ed] to serve more time for the crime.” Compl. ¶¶ 156-158. He alleges that in 2008 and 2013, the decision of the presiding parole commissioners was to rehear his case at a future date because of the nature of the crime, and that at his parole hearing in 2011, “he was advised that he will be sent to Patuxent for a psychological evaluation.” Compl. ¶¶ 161, 164, 165.
Mr. Foster alleges in summary fashion that he has been “barred from developing skills that allow him to demonstrate his rehabilitation,” Compl. ¶ 166, but as with Mr. Tucker and Mr. McNeil, his factual allegations demonstrate otherwise. Indeed, Mr. Foster acknowledges that the Division has “entrusted [him] with extraordinary responsibilities in [his] jobs.” Compl. ¶ 152. Nor has he alleged any facts indicating that, in the last 20 years, any parole decision has conditioned release on progression to minimum or work release security. Compl. ¶ 156. In any event, as noted above, the restriction on progression to lower security about which he complains has been removed for inmates serving life sentences for crimes committed as juveniles.
Nor has Mr. Foster alleged any facts demonstrating that he has been denied parole due to the results of a risk assessment that “holds his youth at the time of offense against him.” Compl. ¶ 166. Rather, at his recent parole hearings, the presiding commissioners
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expressed concern regarding the nature and circumstances of his crime. Notably, Mr. Foster does not contend that, in making the determination to rehear his case at a future date based on this concern, the presiding commissioners failed to consider his status as a juvenile at the time he committed the offense. Accordingly, he too has failed to “allege facts sufficient to raise a right to relief ‘above the speculative level,’” Aziz v. Alcolac, Inc., 658 F.3d 388, 391 (4th Cir. 2011) (quoting Twombly, 550 U.S. at 555), and this Court should therefore dismiss his claims. V. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT BECAUSE
UNDISPUTED FACTS SHOW THAT PRISONERS SERVING LIFE SENTENCES FOR CRIMES COMMITTED AS JUVENILES RECEIVE NOTICE AND OPPORTUNITY TO PARTICIPATE IN THE PAROLE PROCESS AND TO DEMONSTRATE MATURITY AND REHABILITATION, AND HAVE BEEN GRANTED PAROLE. As demonstrated above, the complaint’s factual allegations demonstrate that they have not been denied meaningful opportunities for parole consideration in violation of the Eighth Amendment. Even if the Court determines that those allegations adequately state an Eighth Amendment claim, however, it is clear from evidence not subject to dispute that the plaintiffs’ claims lack merit, because Maryland’s “means and mechanisms” provide juvenile lifers with appropriate opportunities to demonstrate maturity and rehabilitation. Graham, 560 U.S. at 75, 82; Miller, 132 S. Ct. at 2469. Undisputed evidence also confirms that, contrary to the plaintiffs’ allegations, juvenile offenders sentenced to life imprisonment are released on parole.
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A. Maryland’s Parole Process Affords Inmates Serving Life Sentences with Proper Parole Consideration.
Unlike a state in which “there is no advance notice or opportunity for juvenile
offenders to be heard on the question of maturity and rehabilitation - either in writing or in
person,” and “[t]he offender is an entirely passive participant in . . . [the] parole review
process,” Hayden v. Keller, 134 F. Supp. 3d 1000, 1011 (W.D.N.C. 2015), in Maryland,
“prisoners receive individualized and personal parole consideration.” As explained by
Chairman Blumberg,
Pursuant to Correctional Services Article (“CS”), § 7-303(a) and Code of Maryland Regulation (“COMAR”) 12.08.01.17.C, the Commission provides to the inmate advance written notice of the date, time, and place of the parole hearing, as well as the factors that the Commission will consider in determining whether to parole the inmate. Prior to the hearing, the Commission also notifies the inmate that the inmate or a representative of the inmate has the right to examine any document to be reviewed by the Commission in considering the inmate for parole, subject to the exceptions listed in CS § 7-303(b). After reviewing the parole file in the presence of the institutional parole agent (“IPA”), the inmate or the inmate’s representative has the right to dispute information contained in the parole file or to request the placement of additional information in the parole file. If the IPA and the inmate or representative cannot resolve the issue, the IPA is required to notify the Commission immediately. The Commission then takes all necessary steps to investigate the matter and to determine whether any information should be removed from or added to the file before the parole hearing.
All prisoners serving life sentences are considered for parole by two commissioners who meet with the prisoner either in person or by videoconference. Pursuant to COMAR 12.08.01.18, a parole hearing is actually an interview of the inmate, not a formal hearing. Pursuant to the same regulation, “[t]he hearings are private and shall be held in an informal manner, allowing the prisoner the opportunity to give free expression to his views and feelings related to his case;” furthermore, although attorneys and relatives are not permitted to make presentations during parole hearings, they are permitted to meet with a parole commissioner “to discuss the relative
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merits or other factors of the case with the Commission at its executive offices, any time before or after a parole hearing.”
If both commissioners believe that a prisoner serving a life sentence is a suitable candidate for parole or commutation, they hold the case and refer the prisoner for a psychological examination, also known as a risk assessment. If the results of the risk assessment are promising, the commissioners present the case to the Commission en banc, pursuant to COMAR 12.08.01.23.A. Prior to considering the case en banc, each parole commissioner personally reviews the prisoner’s entire parole file. After every commissioner has reviewed the parole file, the Commission meets to discuss the case in detail, giving careful consideration to all of the factors listed in CS § 7-305 and COMAR 12.08.01.18.A. The commissioners who present the case to the Commission explain the circumstances of the crime, the age of the prisoner at the time of the offense, the sentence imposed by the Court, the prisoner’s criminal history, the progress of the prisoner in the Division of Correction (including programming and discipline), family support, employment prospects, substance abuse issues, any medical or mental health issues, the results of the risk assessment, victim impact, and any other factor that may be relevant to the parole consideration. The commissioners then have the opportunity to ask questions of the two commissioners. After the discussion, one commissioner makes a motion to approve the prisoner for either parole or a commutation of sentence, the motion is seconded, and the commissioners vote. If the Commission votes to approve the prisoner for parole or a commutation of sentence, the decision is forwarded to the Governor for review.
Exhibit 2 ¶¶ 24-26. It is thus clear that the procedures in place in Maryland for providing
parole consideration to inmates serving life sentences for crimes committed as juveniles
comport with the requirements of Miller and Graham.
B. Maryland’s Parole Process Has Resulted in the Parole of Inmates Serving Life Sentences for Crimes Committed as Juveniles.
The plaintiffs wrongly claim that former governors and parole officials denied
parole to all inmates serving life sentences for crimes committed as juveniles who applied
for early release. See, e.g., Compl. ¶ 119 (alleging the “failure to parole any juvenile lifer
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for more than 20 years”). In fact, under both of Governor Hogan’s most recent predecessors, Governor Martin O’Malley and Governor Robert Ehrlich, Jr., the Governor and the Parole Commission acted together to parole inmates serving life sentences for crimes as juveniles. See Exhibit 1 ¶¶ 5-17. First, the Governor, on recommendation of the Parole Commission, commuted the inmate’s sentence to a term of years, or to life, with all but a term of years suspended. Thereafter, the inmate was granted parole by the Parole Commission, subject to enumerated conditions of parole.
Contrary to the plaintiffs’ claims that Maryland’s governors and public safety officials have denied youthful offenders “meaningful opportunities for rehabilitation,” Compl. ¶ 16, the Executive Orders and parole orders that resulted in the releases of these prisoners demonstrate the careful consideration given to the offenders’ cases, and the numerous opportunities for treatment, counseling, and educational and vocational training afforded to the parolees upon release. In each case, the Governor considered the Parole Commission’s recommendation for release, as well as other factors in individual cases, including the offender’s age at the time of the offense, and the views of the sentencing court. Exhibit 1 ¶¶ 5-17. A comprehensive post-release plan was also created for each offender to assist the offender in conforming his or her conduct to the law.
Defendants have thus provided undisputed evidence that, in compliance with Graham and Miller, Maryland’s parole process has the proper “means and mechanisms” to afford inmates serving sentences for crimes committed as juveniles a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Miller,
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132 S. Ct. at 2469. Accordingly, if the Court does not grant dismissal, it should grant summary judgment in favor of the defendants. VI. THE PLAINTIFFS’ CLAIM AGAINST THE COMMISSIONER OF
CORRECTIONS IS BARRED BY THE MANDATORY EXHAUSTION PROVISION OF THE PRISON LITIGATION REFORM ACT. The Prison Litigation Reform Act (“PLRA”) requires an inmate to exhaust “proper[ly]” all available administrative remedies prior to filing an action challenging the conditions of the inmate’s confinement. 42 U.S.C. § 1997e(a); Ross v. Blake, __ U.S. __, 136 S. Ct. 1850, 1856 (2016); Woodford v. Ngo, 548 U.S. 81, 84 (2008). The PLRA’s “mandatory” exhaustion requirement applies to “all inmate suits about prison life,” Porter v. Nussle, 534 U.S. 516, 532 (2002), and thus plainly applies to the complaints against Commissioner Corcoran. The plaintiffs did not avail themselves of remedies available through the Inmate Grievance Office prior to filing suit against Commissioner Corcoran. Exhibit 3 (Decl. of Russell Neverdon). Therefore, their claims against Commissioner Corcoran, and any other claims addressed to the actions or inactions of Division of Correction officials, must be dismissed.
CONCLUSION The complaint should be dismissed and, in the alternative, summary judgment should be entered for defendants.
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Respectfully submitted,
/s/ Steven M. Sullivan ______________________ STEVEN M. SULLIVAN Federal Bar No. 24930 JULIA DOYLE BERNHARDT Federal Bar No. 25300 Assistant Attorneys General 200 Saint Paul Place, 20th Floor Baltimore, Maryland 21202 ssullivan@oag.state.md.us jbernhardt@oag.state.md.us (410) 576-6325 (410) 576-6955 (facsimile) MICHAEL O. DOYLE Federal Bar No. 11291 Assistant Attorney General Department of Public Safety and Correctional Services 300 East Joppa Road, Suite 1000 Towson, Maryland 21286 michaelo.doyle@maryland.gov (410) 339-7567 (410) 764-5366 (facsimile) Attorneys for Defendants
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Case 1:16-cv-01021-ELH Document 23-2 Filed 07/08/16 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

MARYLAND RESTORATIVE

*

JUSTICE INITIATIVE, et al.,

*

Plaintiffs,

* No. 1:16-cv-01021-ELH

v.

*

GOVERNOR LARRY HOGAN, et al.,

*

Defendants.

* * * * * * * * * * * * * * * * *

ORDER GRANTING SUMMARY JUDGMENT

Upon consideration of Defendants’ Motion to Dismiss or, in the Alternative, for

Summary Judgment, it is this _____ day of ________________, 2016,

ORDERED that Defendants’ motion for summary judgment is hereby

GRANTED; and it is further

ORDERED that Plaintiffs’ request for permanent injunction and all other relief is

DENIED.

________________________ Ellen L. Hollander
United States District Judge

Case 1:16-cv-01021-ELH Document 23-2 Filed 07/08/16 Page 2 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

MARYLAND RESTORATIVE

*

JUSTICE INITIATIVE, et al.,

*

Plaintiffs,

* No. 1:16-cv-01021-ELH

v.

*

GOVERNOR LARRY HOGAN, et al.,

*

Defendants.

* * * * * * * * * * * * * * * * *

ORDER GRANTING MOTION TO DISMISS

Upon consideration of Defendants’ Motion to Dismiss or, in the Alternative, for

Summary Judgment, it is this _____ day of ________________, 2016,

ORDERED that Defendants’ motion to dismiss is hereby GRANTED; and it is

further

ORDERED that Plaintiffs’ request for permanent injunction and all other relief is

DENIED.

________________________ Ellen L. Hollander
United States District Judge

Case 1:16-cv-01021-ELH Document 23-3 Filed 07/08/16 Page 1 of 78

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

MARYLAND RESTORATIVE

*

JUSTICE INITIATIVE, et al.,

Plaintiffs,

*

v.

* CaseNo.1:16-cv-01021-ELH

GOVERNOR LARRY HOGAN, et al., *
Defendants.
*

*

****** *****

DECLARATION OF DAYID R. BLUMBERG

I, David R. Blumberg, am over eighteen years of age and am competent to testify.

1. I am the Chairman of the Maryland Parole Commission ("the Parole

Commission"). I have served as Chairman since July 1, 2004. I served as a

commissioner of the Parole Commission from October 1, 2003 until my appointment as

Chairman.

2. As the Chairman of the Parole Commission, I am a custodian of the files

and records of the Parole Commission.

3. The information contained m this declaration is based upon personal

knowledge of my review of files and records of the Parole Commission. The documents

attached to this declaration are true and accurate copies of records maintained in the

ordinary course of business of the Parole Commission.

1

EXHIBIT

I I

Case 1:16-cv-01021-ELH Document 23-3 Filed 07/08/16 Page 2 of 78
4. Between 1999 and 2012, five Division of Correction ("Division") inmates who were originally sentenced to life imprisonment for crimes committed as juveniles, that is, at an age under 18, were paroled from the Division. Between 2004 and the present, five inmates who were originally sentenced to life imprisonment for crimes committed as adults, that is, at age 18 or older, have been paroled from the Division or released from the Division on mandatory supervision following a commutation of sentence granted by the Governor.
Parole of John Alexander Jones (17 Years of Age at Time of Offense) 5. On November 5, 2012, upon recommendation of the Parole Commission, Governor Martin O'Malley conditionally commuted the life sentence of John Alexander Jones, Division identification number 168832, to life, with all but 47 years suspended. See Attachment A (Executive Order 01.01.2012.27). Mr. Jones was convicted by the Circuit Court for Baltimore City on August 25, 1983 of felony murder, and received a life sentence. Mr. Jones was also convicted of attempted robbery with a deadly weapon, and a handgun violation, for which he received a concurrent five-year sentence. In conditionally commuting Mr. Jones's life sentence, the Governor noted that Mr. Jones "was seventeen years old at the time of the offense and has compiled, while incarcerated, a strong record of work experience and institutional progress, including the attainment of a GED and then an undergraduate degree from Coppin State University." Attachment A, p. I. The Governor also noted that "[t]he jury convicted [Mr. Jones] of[f]elony [m]urder for participation in an attempted robbery that led to the murder, but the State ... did not allege that [Mr. Jones] was the shooter;" that the State's Attorney for Baltimore City
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"does not oppose clemency" for Mr. Jones; and that the Parole Commission "has concluded that [Mr. Jones] presently appears to constitute no threat to public safety and recommends the granting of[e]xecutive [c]lemency." Attachment A, p. 1.
6. The Governor conditioned the commutation of Mr. Jones's sentence on Mr. Jones's participation in "a period of community testing and/or ... work release" and a reentry plan, to include a home plan, an "employment plan that includes as necessary, job placement, job training, and/or educational programs," a counseling plan, and if deemed necessary by the Parole Commission, a substance abuse evaluation and treatment program. Attachment A, p. 2. The Governor authorized the Parole Commission to grant parole to Mr. Jones if merited, and also directed that upon release, Mr. Jones participate in counseling, and mental health treatment and substance abuse treatment, as directed by the Parole Commission and his supervising agent. Attachment A at pp. 2-3. The Governor's order also provided for supervision by the Parole Commission following the expiration of the 47-year term, if deemed necessary by the Parole Commission, and included procedures for revocation of the release if Mr. Jones failed to abide by its terms. Attachment A, pp. 4-5. Following the conditional commutation of Mr. Jones's sentence, the Parole Commission granted parole to Mr. Jones on February 20, 2013. See Attachment B (Order for Release on Parole).
Parole of Mark Farley Grant (14 years of Age at Time of Offense) 7. On March 29, 2012, Governor O'Malley, upon recommendation of the Parole Commission, conditionally commuted the life sentence of Mark Farley Grant, Division identification number 171372, to a term of life, with all but 45 years suspended.
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See Attachment C (Executive Order 01.01.2012.06). Mr. Grant was sentenced by the Circuit Court for Baltimore City on January 31, 1984 to life imprisonment, and a consecutive 15-year term, after a jury found him guilty of felony murder, use of a handgun in the commission of a crime of violence, and attempted robbery with a deadly weapon. In 2003, the sentencing court merged the sentences for use of a handgun and attempted robbery into the life sentence. Attachment C, p. 1.
8. The Governor noted that Mr. Grant "was fourteen years old at the time of the offense and has compiled, while incarcerated, a strong record of work experience and institutional progress." Attachment C, p. 1. He also noted that the jury had acquitted Mr. Grant of first-degree murder; that the State's Attorney for Baltimore City "does not oppose clemency for [Mr. Grant];" and that the Parole Commission "has concluded that [Mr. Grant] presently appears to constitute no threat to public safety and recommends the granting of [e]xecutive [c]lemency." Attachment C, p. 1.
9. The commutation of Mr. Grant's sentence was conditioned on Mr. Grant's participation in "a period of community testing and/or ... work release" and a re-entry plan, to include a home plan, an employment plan "that includes, as necessary, job placement, job training, and/or educational programs," a counseling plan, and if deemed necessary by the Parole Commission, a substance abuse evaluation and treatment program. Attachment C, p. 2. The Governor's order authorized the Parole Commission to grant parole to Mr. Grant, if merited, and also directed that upon release, Mr. Grant participate in counseling and mental health treatment and substance abuse treatment, as directed by the Parole Commission and his supervising agent. Attachment C, pp. 2-3.
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The order also provided for superv1s1on by the Parole Commission following the expiration of the 45-year term, if deemed necessary by the Parole Commission, and procedures for revocation of the release if Mr. Grant failed to abide by its terms. Attachment C, pp. 4-5. Following the conditional commutation of Mr. Grant's sentence, the Parole Commission paroled Mr. Grant on December 18, 2012. See Attachment D (Order for Release on Parole).
Parole of Mary Washington Brown (16 years of Age at Time of Offense) 10. On November 25, 2004, Governor Robert L. Ehrlich, Jr., on recommendation of the Parole Commission, conditionally commuted the life sentence of Mary Washington Brown, Division identification number 901457, to a term of 60 years. See Attachment E (Executive Order 01.01.2004.67). Ms. Brown was sentenced to imprisonment for life by the Circuit Court for Baltimore City on December 18, 1974, following her conviction for first degree murder. At the time of the offense, Ms. Brown was 16 years of age. 11. In commuting Ms. Brown's sentence, the Governor noted the following: that Ms. Brown was "an exemplary inmate," and had "compiled an impressive record of practical instruction, work experience, and institutional progress;" that the Parole Commission "has concluded that [Ms. Brown] appears to constitute no threat to the safety of society;" and that the Parole Commission "recommends the granting of executive clemency." Attachment E, p. I. He therefore concluded that "[t]he interests of the State of Maryland and of [Ms. Brown) will be best served by the granting of' the conditional commutation. Attachment E, p. I.
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12. The commutation of Ms. Brown's sentence was conditioned on Ms. Brown's participation in 12 months of work-release prior to reaching parole eligibility. Attachment E, p. 1. The Governor's order further stated that in the event the Parole Commissi.on "determines that [Ms. Brown] merits parole release," Ms. Brown would be required to comply with a re-entry plan that included counseling and substance abuse treatment, as well as educational and vocational training. Attachment E, pp. 1-2.
13. Following the commutation of Ms. Brown's sentence, the Parole Commission granted parole to Ms. Brown on February 13, 2006. See Attachment F (Order for Release on Parole and Offender-Based State Corrections Information System ("OBSCIS") record, reflecting that Ms. Brown was released on parole). Because Governor Ehrlich commuted Ms. Brown's sentence to a term of years, she was no longer serving a life sentence when the Parole Commission granted her parole, and approval by the Governor was thus not required. Ms. Brown remains under parole supervision until the 60-year term expires.
Parole of Karen Lynn Fried (17 years of Age at Time of Offense) 14. On November 14, 2003, Governor Ehrlich, on recommendation of the Parole Commission, commuted the life sentence of Karen Lynn Fried, Division identification no. 902530, to a term of 45 years. See Attachment G (Executive Order 01.01.2003.35). Ms. Fried had been sentenced to imprisonment for life by the Circuit Court for Baltimore County on September 15, 1978, following her conviction for murder. Ms. Fried also received a five-year concurrent sentence for conspiracy to commit murder. Attachment G, p. 1.
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15. In commuting Ms. Fried's sentence, Governor Ehrlich noted that when Ms. Fried committed the offenses, she was seventeen years of age. Attachment G, p. I. He also noted that in August 1988, the sentencing judge "wrote his belief that '[Ms.) Fried has achieved maximum rehabilitation and has reached the point where she should be paroled."' Attachment G, p. I. The Governor further noted that in September 1993, "a three-judge panel of the Circuit Court for Baltimore County found that [Ms.) Fried's progress during incarceration had been exemplary;" that "[h]er achievement in education and apparent rehabilitation had been noteworthy and highly commendable;" and that "[s]he appeared to have earned the opportunity to be considered for ultimate release from confinement[.)" Attachment G, p. I. Additionally, Governor Ehrlich noted that while incarcerated, Ms. Fried "has earned her GED and engaged herself in a wide range of selfhelp programs," and that she "has a comprehensive support network in place upon reentry." Attachment G, p. I.
16. Finally, Governor Ehrlich noted that the "Parole Commission has concluded that [Ms. Fried] being contrite and remorseful, presently appears to constitute no threat to the safety of society, and recommends her sentence to be commuted to a term of forty-five years[.]" Attachment G, p. I. He concluded that "the interests of the State of Maryland and [Ms. Fried] will best be served by commutation of the sentence." Attachment G, p. I.
17. Following the commutation of Ms. Fried's sentence to a term of 45 years, the Parole Commission granted parole to Ms. Fried on September 15, 2015. See Attachment H (Order for Release on Parole and OBSCIS record reflecting that Ms. Fried
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was released on parole). As was the case with Ms. Brown, because Governor Ehrlich commuted Ms. Fried's sentence to a term of years, she was no longer serving a life sentence at the time the Parole Commission granted her parole, and approval by the Governor was not required. Ms. Fried will remain under parole supervision until the 45year term expires on March 24, 2023.
Parole of Milton Humphrey (17 years of Age at Time of Offense) 18. On May 20, 1999, the Parole Commission, with the approval of Governor Parris Glendening, granted a "medical parole" to Milton Humphrey, Division identification no. 193624. See Attachment I (Order for Release on Parole and OBSCIS record reflecting that Mr. Humphrey was released on medical parole). Prior to the enactment, in 2008, of § 7-309 of the Correctional Services Article ("CS"), which specifically authorizes the granting of medical parole, the Parole Commission granted medical paroles under its general parole authority set forth in CS § 7-205. Mr. Humphrey was paroled from a life sentence beginning on October 6, 1987, imposed by the Circuit for Baltimore City on August 10, 1988, for first degree murder, and a consecutive 13year sentence for use of a handgun. When he committed these crimes, Mr. Humphrey was 17 years of age. See Attachment J (Parole Information System ("PARIS") record, reflecting that Mr. Humphrey was born on September 13, 1969 and that his offenses occurred on August 28, 1987). Mr. Humphrey died on or about June 9, 1999. See Attachment K (OBSCIS record, reflecting that Mr. Humphrey's case was closed on June 9, 1999, due to his death).
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Early Releases Of Inmates Sentenced to Imprisonment for Life for Crimes Committed at 18 Years of Age or Older Under Governors Hogan, O'Malley, and Ehrlich
19. In addition to the parole releases set forth above, under Governors Hogan, O'Malley, and Ehrlich, five inmates who were sentenced to imprisonment for life for crimes committed at age 18 or older have been released on parole prior to the expiration of the life sentence or on mandatory supervision following commutation of sentence. On February 3, 1989, Howard Simms, Division identification number 197429, was sentenced by the Circuit Court for Howard County to imprisonment for life on February 3, 1989, upon conviction of a fourth crime of violence. See Attachment L (case record, Circuit Court for Howard County, case no. 13-K-87-017186). On October 8, 2014, the Parole Commission elected to grant parole to Mr. Simms. On October 10, 2014, the Parole Commission forwarded its parole decision to Governor O'Malley pursuant to § 730l(d)(5)(i) of the Correctional Services Article, which provides that "[i]f the [Parole] Commission decides to 'grant parole to an inmate sentenced to life imprisonment who has served 25 years without application of diminution of confinement credits, the decision shall be transmitted to the Governor," who "may disapprove the decision by written transmittal to the [Parole Commission]." Under§ 7-30l(d)(5)(ii), "[i]fthe Governor does not disapprove the decision within 180 days after receipt, the decision becomes effective." During the 180-day period, neither Governor O'Malley nor Governor Hogan, who succeeded Governor O'Malley on January 21, 2015, disapproved the Parole Commission's decision. Mr. Simms was paroled on September 24, 2015. See
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Attachment M (Order for Release on Parole). Mr. Simms was 43 years of age when he committed his offense.
20. On March 29, 2012, Governor O'Malley, on recommendation of the Parole Commission, commuted the life sentence of Tamara Settles, Division identification number 904563, which was imposed by the Circuit Court for Prince George's County on April 11, 1985 upon her conviction for felony murder, to a sentence of life, with all but 40 years suspended. See Attachment N (Executive Order 01.01.2012.07). On July 26, 2012, the Parole Commission granted parole to Ms. Settles. See Attachment 0 (Order for Release on Parole). Ms. Settles was 26 years of age at the time of the offense.
21. On November 25, 2004, as amended on November 29, 2004, Governor Ehrlich, on recommendation of the Parole Commission, granted a conditional commutation of sentence to Walter Arvinger, Division identification number 111175. See Attachment P (Executive Order 01.01.2004.69). Mr. Arvinger was convicted in the Circuit Court for Baltimore City of first-degree murder on December 4, 1969, and sentenced to life imprisonment. Governor Ehrlich conditionally commuted Mr. Arvinger's sentence to a sentence of life, with all but 45 years suspended, and directed that upon his release, he was to "be supervised by the Division of Parole and Probation as though on mandatory supervision." On the date of the issuance of the amended conditional commutation, Mr. Arvinger was released from the Division subject to the standard conditions of mandatory supervision. See Attachment Q (Conditions of Mandatory Supervision Release). Mr. Arvinger was 19 years of age at the time of the offense.
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22. On November 25, 2005, Governor Ehrlich, on recommendation of the Parole Commission, granted a conditional commutation of sentence to Charles Davis, Division identification number 6762. See Attachment R (Executive Clemency order). Mr. Davis was convicted in the Criminal Court of Baltimore City of murder on December 6, 1960, and sentenced to life imprisonment. Governor Ehrlich conditionally commuted Mr. Davis's sentence to a term of 65 years. On June 9, 2006, the Parole Commission granted parole to Mr. Davis, who was 21 years of age at the time of his offense. See Attachment S (Order for Release on Parole).
23. On February 25, 2005, Governor Ehrlich, on recommendation of the Parole Commission, granted a conditional commutation of sentence to Charles Terrell Walters, Sr., Division identification number 133871. See Attachment T (Executive Order 01.01.2005.07). Mr. Walters was convicted by the Circuit Court for Garrett County of murder, robbery with a deadly weapon, assault, and use of a handgun in the commission of a crime of violence, and on February 25, 1977, he received sentences of life beginning on March 16, 1975, ten years concurrent, five years concurrent, and five years consecutive. On September 23, 1975, the Circuit Court for Montgomery County imposed a ten-year consecutive sentence for armed robbery, and on August 12, 2002, Mr. Walters's Garrett County sentences were modified to an aggregate term of life, with all but 50 years suspended. Following the court's modification of the sentences, Governor Ehrlich conditionally commuted Mr. Walters's sentences to a total term of 50 years. Attachment T, p, 2. On November 2, 2006, the Parole Commission granted parole to Mr.
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Walters, who was 28 at the time of his Garrett County offenses. See Attachment U (Order for Release on Parole).
24. Maryland prisoners receive individualized and personal parole consideration. Pursuant to Correctional Services Article ("CS"), § 7-303(a) and Code of Maryland Regulation ("COMAR") 12.08.01.17.C, the Commission provides to the inmate advance written notice of the date, time, and place of the parole hearing, as well as the factors that the Commission will consider in determining whether to parole the inmate. Prior to the hearing, the Commission also notifies the inmate that the inmate or a representative of the inmate has the right to examine any document to be reviewed by the Commission in considering the inmate for parole, subject to the exceptions listed in CS§ 7-303(b). After reviewing the parole file in the presence of the institutional parole agent ("IPA"), the inmate or the inmate's representative has the right to dispute information contained in the parole file or to request the placement of additional information in the parole file. If the IPA and the inmate or representative cannot resolve the issue, the IPA is required to notify the Commission immediately. The Commission then takes all necessary steps to investigate the matter and to determine whether any information should be removed from or added to the file before the parole hearing.
25. All prisoners serving life sentences are considered for parole by two commissioners who meet with the prisoner either in person or by video-conference. Pursuant to COMAR 12.08.01.18, a parole hearing is actually an interview of the inmate, not a formal hearing. Pursuant to the same regulation, "[t]he hearings are private and shall be held in an informal manner, allowing the prisoner the opportunity to give free
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expression to his views and feelings related to his case;" furthermore, although attorneys and relatives are not permitted to make presentations during parole hearings, they are permitted to meet with a parole commissioner "to discuss the relative merits or other factors of the case with the Commission at its executive offices, any time before or after a parole hearing."
26. If both commissioners believe that a prisoner serving a life sentence is a suitable candidate for parole or commutation, they hold the case and refer the prisoner for a psychological examination, also known as a risk assessment. If the results of the risk assessment are promising, the commissioners present the case to the Commission en bane, pursuant to COMAR 12.08.01.23.A. Prior to considering the case en bane, each parole commissioner personally reviews the prisoner's entire parole file. After every commissioner has reviewed the parole file, the Commission meets to discuss the case in detail, giving careful consideration to all of the factors listed in CS § 7-305 and COMAR 12.08.01.18.A. The commissioners who present the case to the Commission explain the circumstances of the crime, the age of the prisoner at the time of the offense, the sentence imposed by the Court, the prisoner's criminal history, the progress of the prisoner in the Division of Correction (including programming and discipline), family support, employment prospects, substance abuse issues, any medical or mental health issues, the results of the risk assessment, victim impact, and any other factor that may be relevant to the parole consideration. The commissioners then have the opportunity to ask questions of the two commissioners. After the discussion, one commissioner makes a motion to approve the prisoner for either parole or a commutation of sentence, the motion is
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seconded, and the commissioners vote. If the Commission votes to approve the prisoner for parole or a commutation of sentence, the decision is forwarded to the Governor for review.
27. The Department of Public Safety and Correctional Services recently proposed to amend COMAR 12.08.01.17 and 12.08.01.18 (Attachment V) through the emergency process contained in the Administrative Procedure Act (APA),§§ 10-101 - 10-118 of the State Government Article. The Joint Committee on Administrative, Executive, and Legislative Review recently informed the Department that as a result of comments received by members of the public, the committee will not currently take action on the emergency regulations. Accordingly, pending further action by the Committee, the Department will promulgate the regulations through the non-emergency process set forth in the APA. While that promulgation process is pending, the Commission will consider the factors listed in proposed COMAR 12.08.01.18.A(3) when considering for parole any prisoner who was a juvenile at the time of the offense, and will provide access to information to prisoners being considered for parole under proposed COMAR 12.08.01.17, which was drafted to ensure that the policies of the Parole Commission comply with Maryland Jaw, and in particular CS§ 7-303(b)(2).
28. Most prisoners serving a life sentence, or a life sentence with all but a number of years suspended, are eligible for parole after serving 15 years less diminution credits, which usually works out to parole eligibility in approximately 11 Y2 years. If the prisoner was sentenced to life, or to life with all but a number of years suspended, following the failed application of the death penalty or a sentence of life without parole, the prisoner is
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eligible for parole after serving 25 years, less diminution credits, which usually works out to parole eligibility in approximately 20 years. CS § 7-301(d) (1) and (2). A prisoner convicted of a violent crime committed on or after October l , 1994, is not eligible for parole until the prisoner has served one-half of the sentence for the violent crime. CS § 7-30l(c). For example, a prisoner serving a life sentence (or a life sentence with all but 50 years suspended) in a case in which there is no failed application of the death penalty
or a sentence of life without parole, is eligible for parole after serving approximately 11 Y2
years. By contrast, a prisoner serving 50 years for an attempted murder of other violent crime committed on or after October 1, 1994, is not eligible for parole until the prisoner has served 25 years.
I solemnly affirm under the penalties of perjury and upon personal knowledge that the contents of the foregoing declaration are true.

DATE

vm DA R. BLUMBt-o

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. "

Olxctutibe

EXECUTIVE ORDER 01.01.2012.27

Conditional Commtttation of Sentence- Job]) Alexander Jones

WB'EREAS,

John Alexander Jones (Division pf Correction I:nnmte Number 168832), Conditional Grantee, was convicted of Felony Murder, Handgun Violation, '1lld Attempted Robbery with Deadly Weapon in the Circuit Court of Maryland for Baltimore City on August 25, 1983 (Case No. 18305502) and W$S sentenced to lifo imprisonment p:tus five years concurrent;

WHEREAS,

John Alexander JonO<J was seventeen years old at the time ofthe offense and has compiled, while incercorated, a strong record ofwork experience and :institutional progress, including the atrainment of a GED and then an
degree from Coppin State Univ"'1lity;

WHEREAS,

The jury convicted John Alexandor Jones ofFelony Milrd<\< for participation in an attempted robbery that led to 1hemurder, but the State'ofMaryland did not allege thot John Alexander Jones wss the shooter;

WHEREAS,

The Baltimore City State's Attomey does not oppose Al=der Jones; and

for John

WHEREAS,

The MezyJand

Commlssion has concluded that John Alexander Jones

presently appears to COlJ.'ltitule no threat to public safety and rnoornmends the

granting ofExecutive Clemency.

NOW, 'ffiBflEFORE, ·I, MARTIN O'MALLEY, GOVERNOR OF THE STATE OF MARYLAND, · HAVINO TB:OUGHT PROPER IBE CONDITIONAL GRANTING OF CLEMENCY, IN THIS CASE AND UNDER '!HE AUTHORDY VESTED IN ME BY ARTICLE II, SECUON 20 OF THE CONSTITUTION OF MARYLAND AND SECTJON 7-601 OF THE CORRECTIONAL SERVICES ARTICLE OF THE ANNOTATED CODE OF MARYLAND, DO HEREBY ORDER TiiAT THE ORIGINAL SENTENCE TO TIIB CUSTODY OF THE DlVISION OF CORRECTlON BE AND HEREBY IS
nrn CONDJT!O'.NAUY COMMUTED AND CONDITIONALLY REMITTED
TO LIFE WITH ALL BUT 47 YEARS SUSPENDED SUBJECT TO FOLLOWING:

Attachment A

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Pre-release Conditions
A. Prior .to parole release, the Conditional Grantee shall corpplete a period ofcommunity testing endlor a period ofwork release, aa detennined by the Department ofPublic Safety and Co_rrectional Services.
B. Prior to any release 0'1- parole or n;umdatory supervlliion, the Maryland Parole Co:o:uni'lsion, in consultation with the Department of Public Safety and Conectional Services and 1he Department o!Labor, Licensing and Regulation, shall deVise a reentry plan, which must, at a minimum, include:
(1) A home plan, investigated by tho Department ofPublic .Safety and Correctional Services ®d approved by tho Parole Cotntnissiou;
(2) An employment plan that includes, as necessary, job placement, job training, a1Jd/or educational programs;
(3) A counseling plan approved by the Farole Commission and Department ofPublic Safety end Correctional Services; and
(4) Ifdeemed necessary by the Parole Commission, ill consultation with Patoxent fustitution and the Drug end Alcohol Abuse Administration, a substance ab\lSe or mental heWih lrealment evaluation and/or program.
C. The conditional grantee shall snbmit to random drug testing as directed by the Parole Comntlssiou.
D. The Pamle Commission may impose" any otherprMelease conditions tb.at it co))siders proper,
Post-rolease Conditions
E. Ifthe.Marylmd Parole Commission determine. that the Cotlditional Grantee merits parole release, the Parole Coxnmission may grant parole, and the Conditional Grantee shall be supervised by the Dei>arttnent of Public Safety and Conectional Services pursuant to Title 7, Snbtitles 3 and 4 of the Correctional Services Article ofiho Annotatod Code of Maryland, subject to .11 of the standard C(l!lditions ofparole arid the followiltg special conditions:
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(l) l'articipate in counseling programs es provided in fue . reentry plan established under Se<;tion J3 of thls Conditional Commutation unless the ParQJe Co1mnission determines !hat participation in the program is no longer: necessary;

(2) lf deeined necessary by the Parole Commission, submit to a mental health evaluation ond participate Jn menW health treatment programming as directed by W. supervising agent;

(3) Submit to random drug testing as directed by his
supervising agent;

(4) If deemotl necessary by the Parole Commission, p"l'licipate in stlhstance abuse treatment programming as directed by his supervising agent; and

(5) Any other special conditioll.8
considers proper.

Parole Commission

F, lf the Conditionol Grantee is roleased ou mandatory supervision, upon reka:m from custody, he shall be supervised by the Departinellt of Public Safsty and Coo:ectional Services pursUll.ilt to Title 7, Subtitle 5 ofthe Correctional Services Article ofthe Annotated Code of Maryland, subject to all the standard conditions ofmandatory supexvision and the following special conditiorul:

(l) Participate ln CO'Ullscling progrnms as provided iA !he reentry·pl'ttl established unde< Section:S ofthis Conditiooal Corrnnutation unless the Parole Commission detemrines th.at participation in the program is no longer.i1ecessary;

(2) Ifdeemed necessary by the Parole ConnniBsion, submit to amental health evaluation o.nd participate in mental health treatment pro gramrnlng as directed by his supervising agent;

(3) Submit to rE1Ddom drug t.,.tiu.g as directed by his supervising agent;

(4) If deemed necessary by the Parole Commission,
participate in substance abuse treatment programming as directed by his supervising agent; and

(5) Any other special cor1ditions tl:iat !he Parole Commission
considew J?l'OP""

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G. The Parole Commission shall not grant an abatemeot of supervision whik the Conditional Grantee is on parole or numdatory supervision.
H. Revocation ofParat. or Mandatory Supervision and Reimposition ofCommuted Sentence: If the Parole CollllllissiQl) detemrine. that the Conditional Grantee violated a condition ofparole or mandatory supervision und\11 Sectiops E or F of th.is Conditional Commutatiou, but the Conditional Commutation has not been revoked under Section J, the Parole Commission may revoke parole or·mandatory suporvision pursuant to the procedures outlilled in Title 7 of the Correctional Services Article ofthe Annotated Code of Maryland and the Code of Maryland Regulatiops. The Parole Commission may, withia its .discretion, d0J1y the Conditional Grantee credit for time served on parole or mandatory supervision. Notwithstanding any other provision of!aw, the Parole Commission may also, within its discretion, revoke a11y o;r all offue Conditional Grantee's diminution credits whether the Conditional Grantee was released on parole or mandatory supervision.
I. Following completion ofbls unsuspended tenn of 47 years:
(1) The Conditional Grantee must submit to contillued supervision by the Parole Commission for the remainder ofhis suspended lifetime term unless !he Parole Commission detorn:rines that the abatement ofsuch .supervision is in the best mterests of1he State and that further supervision is not necessary fur the protection of public safety. Except as otherwise provided in this Conditional Commutatlon, tlris supervision shall be conducted according to the standard policies mid procf;dures governing supervision of parolees onder the Code ofMatyla!ld Regulations.
(2) The Conditional Granteo must, whefuer or not supervision ls abated, C\lntluue to abide by tlw following conciltions for the remainder of his suspe11ded lifetime torrn:
(a) Report as directed to and follow his parole agent's instructionB unless the Parole Commission has granted an abatement of supervision:
(b) Obey all laws;
(c) Notify the Parole Conunission. before chsnging jobs, clumging his home, or leaving the State ofMaryland. Tho hrolo Commission has the authority to waive these noti,Jication requ:ii:ements;
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(d) Do not illegally use, possess, or sell any narcotic drug, "controlled d•ngerouS<Substanoe," or related paraphernalia;
(e) Do not own, possess, use, sell, or have contra1of any dangerous.weapon or fire= of any descrlQtion wiihout the approval of the Parole Commission;
(f) Notify the Parole Commission immediately if
arrested; and
(g) A11y special conditions that 1he Parole Comtnission considers proper.
Revocation
J. Revocation ofthe Conditional Commutation and Re-imposition ofOriginal Life Sentence: Und"' tho following circumstances, the Parole Commission may, following a hearing, recQl)lI!Jend to the Governor that the Conditional Commutation be revoked and the Conditional Grantee's origiJ'ial life sente.nce be re-imposed if amajority of the commissioners detennine tb.at ihe Conditional iliantee poses a threat to public safety and, considering the totality of the ci.rcllt!ll!tance.s, that revocation is wainmted:
(!) ·The Conditional Grantee is convicted of a ori.mo;
(2) T)l,e Conditional Grantee oW'.lls, possesses, uses, sells or has under his control a fireaun;
(3) The Conditional Grantee, while incarcerated, is fo'Utld guilty of an inmate rule violation listed in Code ofMacyland Regulations Section l2.02.27.Q4B(l)-(4) or (6) oris fout1d guilty of more ihan one inmate rule violation listed iii Code ofMarylmd Regulations Section 12.02.27.04B-E;
(4) The Cond[t)omil Grantee, while participating in a comro11nJ.ty testing or work release ]Ilogram, is found guilty of an inrnHle i;ule violation listed Ju Code ofMaryland Regulations Section 12.02.27.04B(l)-(4) or (6) or is found guilty of more ihan one inmate rule violatioll listed in Code of Maryland Regulations Section 12.02.27.04B·E; or
(5) The Conditional Grantee violates a condition under Sections E, F, or J of this C-OndltiO!la.1 Commutation.
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, ..•
K. The Parole Commission shall notify the Governor in writing of , a recomrnendation to revoke this Conditional CoXDJ!!utation under Section J, and fue Governor may decide to accept or reject fuo Parole Co:o:unission1s recommendation.
Given Under My Hand and the Gi:eat Seal ofthe State of Marylalld Jn !he City of Almapolis, !his 5th day ofNovember, 20D,

ATIEST:

6

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DEPARTMENT OF PUBLIC SAFITT AND CORRECTIONAL SERVICES Jfj

MARYLAND PAROLE COMMISSION

<\'l'1)

Orderfm R€\ease on Parole .

No. AD13543

WHEREAS, llla Parole Cornmlssion, by Virtue ofauthority conferrad upon It by laws ol the State of MaJYland, does h•reby grant parole t.o:

JONES JOHN A Commitment Name (WI, First, Middle)

188832
DOC No.IPARIS No.

1212Bl1965 D.O.B.

Who was convicted of; 1) 01 FELONY MURDER

·

·

2) 02 USE OF HANOGVN IN THE COMMlSSIDN OF A Ci<IME OF VIOLENCE

Court(s); 1) 030 BCl-C!R-Gf!I0001B3D55o2

.

2) Ooo BGl-CIR-OTl/0001830!1502

Oate(s) Sentenced: 1) 0812511003 2) 0812511983

Term(s); 1) Y047 Moo o ooo

_,,_

2)YOOOMODDDOD

From! 1) 0112511983 2) Conourrentfrom 01125/1983

Tracking Nwrnber(s):

37174E SID#

0112512030 Maxlmum B::pira:!:ion Date

Data{s) of IJffensa(s) committed on orafler May 1, 1991

THEREFORE !he said oommission does hereby order ralease on parole oi1hasoid offender from;
Patuxont ln'11Urllon Cotl<>Oiional facility

INSTRUCTIONS TO THE PAROLEE

Upon release you shall be deame11 to

i;legal custody until the expiraioh of your full, undiminished lflllll of c:onflnemen\_

Upon me alleged vlolation ofany rondhion of pal1lleyou shall be remanded to the authorlly from which paroled, where• hearing

shan be oonducted by the Parole Commi.sion. If your parole Is revoked, the Commission shall dsillrmins the amount oftime

spent on parole, if any, which is to be Grndiilld toyourterm of confinement

You are subject to the special conqitions of pamle as setfortl\ below, the standard conditions of parole on and to such further condltions as the Commission may Impose at any time duong the telTTI of your parole,

2 of this oroer

Special Conditions:

1. Submit to, successfi.J!ly nomplete, and pay miy reqtJ!rQ(l coots Wr artj and att

treatment progratm:, iesi:ing, and aftsrcam as dirg(ftfld

by and

OfVieJon of otriar lS!l\las,

Parole and Probation. which may include substance abuse, manta! Take all medioation5 pteacsfoed by your tmatment pf'O\tld131·,

hea!th,

anger

mMagement

parcntlng,

domMtic

violQOce1

MPG-54 (R"'"8ed 1110712007)

Page1 ol 3 ·

Attachment B

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Namo: JONEs JOHN A Oodi:168832

3. Petmlls agents of the. Division of Parole and Probation ID visit your hotne: any time.

34. Comply 1!S a1rected by your parole/probation a.gent with 1tla Division of Pam!El Eiriii Probation's sBXUal rrfrender management µrogram, which

rnay include intensive reporting

speoi.ar!ZJ:!d sex offender treatment, elsclrorilt;:

medication,

testing, and

.oornputor monltonng.

·

'·

35, Gomplywifh any Gtjrfew or site

!tl'lpooed Qj your

:;igent to liml\:ybur

to certain area<1 uf b oomn'IUfll\y

and For ta require you to obtain tiefTTiission to leave your resldenoo during certron hours. Cooperate. with any program which ls es!Hblished to

monlioryour cornpllancewttll these restricHoris, m21y include p<1ymentfur costs assocl.W .wtth Global Positioning Systems (GPS) or other

!racking teohnology.

·

3B, Provide <ii DNA sarnpla as requirnd by law:

89. APP'"'' in court when

oo so.

40. Waive all extradition ri,ghts and

and agree 10 ratumto the.Sta1o.of MaMandwhan.insITT:c:tsd-

41. [Jo no\ physii::any or verbally threaten ar

any employe'e of the: Osp<trtmerrt of Pu bric Safety and

Services,

Olhar. l,MARTIN O'MAUEY, GOVERNOR OF THE STAT5 OF MARYLAND, HAVING THOUGHT PROPER Tl-It CONDITONAL GRANTING OF

CLEMENCY JN THIS CASE AND UNDER IHE AUIHOmY VESTED IN ME DO HEREllY ORDER THAT THE ORIGINAL SENTENCE TO THE

CUSTODY OF THE DIVISION OF CClRRECDDNS EE HEREBY AND IS

COMMUTED AND CONDITIONALLY REMl1irn TD

.LIFE WITH ALL SlJT 47 YEARS SUSPENDED AND SUBJECT TO THEFOlLDWING'. IF 'fHE MPG DE;!ERMINES 1HATTHE CONDIJONAL

GRANTEE MERITS PAROLE RELEASE: 11-IE MPC MAY GRANT PAR0!.1', ANO Ill• GONDITDNAL GRANTEE SHAU. 8" SUPERVISED BY

THE DEPARTMENT OF OPSCS SUBJECTTO All STANDARD CONDllONB AND THE FOLLOWING SPECIAL CONDITIONS: PAROLETQ

PAIBICKALLISDN HOUSE ONLY AND ABIDE BY All RULES AND REGULATIONS OF PROGRAM: SUSMIJ TO MENTAL HEALTH

'TREATMENT AS DIRECTED: MANDATDRYPAR11GIPATIDN IN SUBSTANCE ABUSE1REATMENT. RANDOM DRUG 1'ESTINGAS

DIREC1EJ,

Home Plan
PATIJIOK ALLISON HOUSE-HOWARD l.i'/Jii\!l!OildllllMJitlh-
EmpIDyment Plan

•'!•.
BOB PARKAVENUE. BAlTIMDRE MD 21201 Address

443 95!)0052 Phone

Comp<my Nmms end Confuct PGrson

t'hona

Upon mlaase you shall report, In person; no later than 10;00 A.M., on 0212112013 to !ha Dlviaion of Parole and Probation oflics
10.;ated at 2100 Guilford Avimue Baltimore, MD 21218.
Te.lephona No. 443-263-3706

02120l2013

MPC-64(Revised 11/0712007)

Page2of 3

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N<ime: JONES JOHN A

CONDITIONS OF PAROLE

1. Report as directed lo and follow your Parole Agenrs Instructions.

2. Work regul<:irly,

3. Get permission before:

a. Changing your home;

....

b, Chsnging your job; or

c, Looving lhe Stalll of Maryland,

4. Obey all laws.

5. Notify your Parole Agent immediately if you are arrested.

6. You shall no\ Ili"l!Bily poosos, use, or sell any narcofio drug, "controllod dangerous substance", or

related paraphernalia.

-

7. Yoush,all not own, posSESs, use, sell, or have under your oonb'ol anytlangerous weapon orftrearrns of any descripfion ,fflthout approval of the Parole Commission.

8. You shall conduct yourself as not to present a dangor !o yourself or others.

9, Special condttions: See pa(le 1 of !hi$ tli)i\lernent.
or NOTE' Condttlons 1oand 11 apply to parolees whose term of confinemem re:mltsd from a crime crimes committed on
1991.

10. You· must pay a monthly supervision fee as required by Jaw unless the Parole c:ommission exempts

you wholly or partly mom payment of the fee.

·

11;

by tli• Parole Commission to unde'lJD' drug oralcohol abuse testing, you must pay for the !B!lling if fl'quimd

j]J_(lwill.£b!Y !ha Divlsioh of Parole and Probation.

'

I hafu or have had read to me, the foregoing conllltions of parole and any special conditions, I fully underatand lhem

and agree, in consideration. of grannng of parole to Ob$erve and al;lide by ouch conditions of parole, Further, I hereby waive

extradition lo tha cla!B of Maryland and axprnssly ag,,,,. that I will not contest any effort ID return trJ the State of Maryland

in consequence Of my violating and of lh• !om1s and conditions of fhis parole.

'

Mf'c.64(Reviled11/!l7/2JI07)

Daie 0../02.0/1::,
Dale
P•ge3of:)

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., '

EXECUTIVE ORDER Ol.01;2012.06

·Cbnditlona:l Commuta1ion afSO!ltonco - Mark Farley Grant

.WHEREAS, WHER.EJ\:S, WHEREAS,

Matk Fetley Grant (Divisfon·of Correciion Tumate Number 171372),'

·Conditional Grantee, was convicted ofFeJony Murder, Uso-0f a

H'Jlrdgun in

of• Crime of

and Attempted.

,R9!J.hery with aDeadly Weapon ln fue Circuit Court pfMarylimd fo>

B.altimorn City on January 31, l984 (Case No. 18301906) and was

sentencedto life unprisolUlient plus filteen yeat$;

On Ma+ell ! 0, :Z003,

Cpm:tfor Balilmore City

Mark

Farley Grartt's tell

for Atte)llpted Robbery with a De\'ldly

11J1d.his 'five yeat sentence :J\lr Use of a Fl1U1dg\m in Conµnission

·oh Ctime· ofViolence into hfo·.senfun;;e of life imprisonment for Felony

MUrdet;
....

Mw:k Farley· Grant was fourteen ye<m< old at 1he time of the offense and

·jio;i cpmpiled, while incarcerated, a s.trongTecord of work experience and

:i:nstttu:Uonal progress;

m'l;lli>j.µxy ocnvic;te(!Mark Farle.y Grant of Felony Murder fur participation

Jhe i:obbecy th;Jt led. to the

b11t

him ofFirst Degree

Murde.r;

The Baltitnorl: Cit¥ .State.'s Attoniei' doe$ not opposq. clemency for Mark Farl"Y Grant; lJlld

WHBREA:S,

Tue M&ryland

has oo)lolud.ed ;hat Mark Farley Gtant

presently appears to 'C\Jnstitilte no threat to public safety attd 110conunends

ihe grab.tillfl ofExecutiVe Clemency,

·

NOW,"TFIEREFORE, I,.J'4AR.TIN b1MA;LLEY. GOVERNOR.OF UIB STATE Ol'

.

MARXLAND.1 HAVING THOUGHT PROPER TBE COl\UJITJONAL

j

GRANTING OF CLEMENCY lN THIS CASE AND UNDER THE

AUTIIORITYVESTED JN ME BY ARTICLE II, SECTION20 OF THE CONST!10TION OF MARYLAND AND SECTION 7·601 OF

I

TBE CORJIBCTJO'NAL SBRVlCES ARTICLE OF TI:lE

AN!\fOTATED CODE OF MARYLAND, ))O BBREIW ORDER

'J'HATTHE-OruO:!NALSBNTENCE TO Tiffi.GlJS'I:ODYOF THE:

Attachment C

-

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liNIStON OF CORRECTION BE AND .l:lEREBY IS cONbJUONALL'Y COMMUTEbAND CONDITIONALLY Jm!yJI'ITED TO LIFE Wl'Il!.ALL BUT 45 YEARS SUSPENDED
SUBJECT TO TiiE FOLLOWXN'G;

Pre:teleruie Conditio))s

A. Prlot to parole ¢lease, the Conditional Qrantee sha!J
c.omple_ti; aper-!od of.colnmunityU>liting and/or a period of work .release, as detenninedb:x the Department of Public Safely and ·Co11-ectibna1:8 ervfo<il!,

B·.. Prmr to lll1Y release on·_ parole ot mandatory supePlision, the

Mar)'iand Parole ColilhtliJsieri, in consultation w;ith the

Department of

®d Correctional

and the

Departm:ient oftabor,

andilcgulat\on, shall devise a

whiah must, at a mhrlmmn, iJ;u;l11de:·

.(1) A home plan,

by the Depa'(fmont of

Public Safety.'lltd Correctlonal Ser11ices and approved by fue

.Parole .co=ission;

(2) An. employment plall that

as necoss;uy,

job placement, job U:airring, nnd/or educational progriuns;

A couns9lh)g plan -with the ·Cooperation of the Law

and Social Wwk P-rogram ·at the

of Maryland,

.13!!ltil11Qte- lfJhi, Un!vo;sity df Marj)!i!J,d, B\litltnpte Cat\llQ!

provide

t\le Paro)e

and

'Deplll'tment of Public Safefy and Cmrec!ional Services shall

devise 11 substitute co\lllsoling, plan; and

.(4) l( deemed necessary by the Pal'o·Je Commission, in co.i:isultation with Patuxen! 111stitution a:!ld the Drug ahd Alcohol Abuse Administration,, a substEinco abuse .or mental health
evaluotl0n and/orprogratn.

C., The condltion!!l grMtee s'.ha;ll snbmit to l'andom drug \eStiQg all.directed by!heP11rale Co)nmisslon.

E>.. 'fhe Parole C:onunission may irtl.pose an.y other pre-releaBe conditions thot it.cmn•lders proper.

Post-release C9miltfons

13' rfthe Maryllllld l'm:ole .Qo.mmission a,etemxines :that!he

Co.ndiliQnai !}i:apte.e merits ·pru:ol¢

the Parole

C'otun1iSsibh may ,grant par.Ole, -and the Conditional Grantee shall

2

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b.e superyised by 1he

of'Public Safety and

Corteclio!\lll

pursu!Ulito Title 7, Subtitles 3 aI1d 4 of the

Gorrect!onaJ Se,rvices Aitiblo of the .Amotated Cod.e of

Mazyllmd,.silbJ®t to all of the Standard conditiims ·of parole and

the fo!loWing special conditions:

(l). PllJ:tiqipate in counseling.programs i!ll pro'Vlded in

the reen,b:y pl;m

under

B oftl)is Gonditional

Comniutatiofi unless the Parole Gommissiondeterml!ies that

partfoipation in the program is ·no lon&•r necessary;

(2) Ifdoemed.necess.ary byihe Pti;tole Commission, to a;tneatal health evaluation· and pa:rticipat\o Ui immtal health treatment .programming as directed by his SUpeh'islng
.agent;

(3) Subt)11J to rando)ll drug tesfuig as directed by !)is super-Vising agen.t;

(4) lf deemed.necessary by the Parole Commission,

particlp.aw in substauqe .treatment programming as dfrecte!l

by

Md

\5) AnJI oib,er special condlii.P;os that the Parole
j:ornrriission considers proper,

F, Ifthe Conditional Orautee is released on mondatory

,super<v'isio\1,, \!])Ol1 @lease froill oµstody, he· slil)ll be supervised by

tbe:Pep.a;i:ttnent efPublic Safely Bnd.Comctional Services

p:ursuimt lo Title ·1, Subtitle 5 6f th• Cortcctional Smioes Article

ofthe Annoil\ted Code of'Maryfan4. subject19 all the staodard

conditioµa

mwervis'iqn an<) the following special

cpnditlctts:

(l) Parlicipate in counseline; p>gtarns as provided in

.the reentry plan

U1Jder Section B this

Con;mmtatlqn unless th1' J?a:role C!)Ullnisslon di:tetmines tliat

pm:tioipation:i!l th" µrog+.am is M ]Qnger ;necessary\

to· (2) If deemed necessaty by the Parole Cornmlsslon,
.submit a meyital bi;aith evaluation and patticlpate in ment.1

i
"

.health treatment programming ai>

.agent;

· ·

)Jy .his superviSing

.(3) Submit to random &;ug testing as directed by his

·superl'fa\ng

'

3

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(4) Ifdeemed necessary by 1he '.Parnle·Com:missjon, participate in substimceabuse. tteatrnentp<ogtll11l!Iling aa directed .by· his superv.ismg agent; and

(5) AJiy other

conditions !hat .the

considers proper.

G.

PfilOle Conimission sha\lnot grant an abmeltmnt of

·supervlsion:underCOde of Maryland Regulations. Section

r2:0s,ol.21Hwbi1ethe Conditional Ot:antee i$ on parole or

m!lfldatQ:ty superv!&ion.

H. Rqocarion of or Mandatory Supervision and Re,

·impi>sirio11.ofCommuted Sentence: If fue PIU"ole Commission

deietmlpes tb..at the Con<)itiona) GJ;antee yi'olated a condition of

pa:ro1e or m;mdatozy supervision nndor Sections E or!' of fuls

Conditional Conunutation, but 'the Conditional Co:rrunutation has

.not been t<>vokod 11nder Section J, the. Pa±<lle Cornmlsslon may

.revoke le or ttr:mdatory supervision p=ant to lhe

.procedures outli1te4 lrt Title 7 <lfthe Cottectionlil Scivices

Mc)e .of the Annotated .Oo4e of ]'4aryl;!IJ.d and Code of

Maryland Re,gpla1ions Section 12.08.0l.n.. The Paro.le

Cm:rtmission may, withi,n,its disereJfon, deny the Conditional

Grantee· credit for time served on parole or mandatory

superv:j,,lipn.. Notwithstan\!il\g any other provision qfla:w, the

may !!;\so, within 'its discretion, revoke any or

.id! offue.Condltional

dimlootion oredits whother t11e

C.onilitioiial G:rll.lltee wM released on J?arole or mandatory

sUJlervlsion,

l, 'fo)fowjng CQ!JlPk\iOll of his

ten:n of 45 years:

(1) The Conditi@al Grantee mUS! siibmit to c.ontinued

supervision by the rarolo Commission for the rorniri:rtder of his

suspended lifeiirne tennunless the Parole Corm:ni'<sion

·determ.);nes that the

of such supervision is i11 the best

\nterests of the State and that l\irthet ·.supervlslo11 is not necessary

for the protoo:ti:on of public ·safety. Except as b:lherWise provided

fo tllls Conditional Commutation, this supervision.shall be

conducted accordlng to the standard yolioies.and procodures

govmrlng mipervfa!0n. ofparolees up,de(IOode ofMaryland
Sectian r2:os.OJ.2!.

(ll) The C::ondH!onal Grant.ee. mwrt, whother gr not

. supervision ls abated, cenfuuie to abide by the fO'llo"ldll!l

·cCOJlditions :fur the

.ofhl<!: suspended lifetime term:

4

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(a) Report"" directed to and follow hls parole ·agent's -instn)c;tlons \lllless the:Parole Commlssion hll!l granted an
11\>atement of supervi&ion:

{!>) Obey.alllaws;

(0) Notify the Parole Commission before cli®ging job$, changW.g_ hls home, ot teavlng the State of Maryliind, The Parole· Cemmission has the authority to waive these notificatfon requlrement:i;

-(cj) Do not llle_gal)y use, .J'08Sess, or sell my

J)'arcot.ic- dl:ug; "pontrolled dimgerous .su\lstimce,» or related

:PE1111phema1ia;

·

.(e) .Do not OWQ, _possess, -use, or have c.ontral of any dangemus We(ltlon or firea:rm. of any descriptiou wi\houn4e '\J?Pro'Val of the Parole Conunisslon;

(f) Notify the Pru:ole Commission inunediately if"1rested; and

.(g) Any Special con\!Wons that t.lw llBrole
Conunission·considers proper.

Rev:ocation

).. Rei•ocation of/he CandittonaJ Commutation-and Re·

f1J1J1<!$itl!m /Jf Original Life. Se»tetice< Under the fallowing.

lliremnstil:nces, the Parole C,omrnission may,following.a:hearlng,

reaommend to the.Governor

Coll\!iti.ona) Col;n!ll\ltation be

revol<:e<) lll)cl.flle Cond±ti0nal

orlgln'll life s.enten.ce be re·

'\mp<\Sed if.a majority ofthe commissioners determine that the.

Q>ndititl11•l Grante.e

a. threat to. public

(Uld,

$Ons:iderlng .the totality ofthe oircumstanoes,. that revocation .is
war; ante&

(1) TheClllldi\ionql·CJ:rantee.is 09nvicted of•a oriine;
. (2) 'rhe Conditional Grantee owns, possesses, ·uses,
sells or has under·his oontrnl a firearm;

(3) The ·Conditional Or@tee, whlle inoarcerate(j, Is

fo1ll;l4 .guilty of ;,n inmate rule violation listed in Code Qf

Mru:ylOJ.id Regulations Sect!on.12.0Z.27.04B(l)c{4) ""(6) or ia

{oUn.<h:u/lty

than one ininate'Ii.!le vfolation listed in Code

of Mllryl<llld Reg14lations Beotion.12.02.27.04B-E;

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{4) The Cqn\ljtional Grantee, whlle.pi;irtf<)\pating in a

cov:rrnumty testing.or wo1-k:releaso pr.ogram, is found guiltJ of l\ll

inmate rule vldlatlon listed in Cade of MaIY,land R.egulatloruJ

Section 14.Q2.27,04B{l)-(4) or (Q) or ls .founQ:gl,lilty of more th>m

one inmate i;ufo. yfolation listed ln Cocle ofMaryl!lllc\

SoctioiJ(J2.0Z;z;i,04B-E; or

·

(5) the Conditional Grantee violates a condition unde)'. i;lection;i B, F, or I oftlill: Conditional Commumtion.

K. Ttie. Parole Commission shall notify tho Governor in
wrlting.of:a reoolnmendation to revoke this Con\1itional Con;ml,lfatiou under Sectfon J, and the Ooverll1lr may declde to accept Ol'. reject the Parole. Co111:1Uission's .i:ecomtnendation.

GivenU:uder lYfy Hand and the GJ:eat Seal of the SWJ:e of 'Morylan<! in the city ofAu:napolis., thia29th day ofMflJ'ch, ' 2012,

ATTEST:

Governo.t

6

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........ .... , -·-·- (..\.,......r..l.,...... .... -f.,...,,.. Onf.-. .....,................ r ....,, nnr,.,ln

No .. /\0131J6o

WHEREAS. 1ha Parolo .Commission, by vlrlue of authority conferred upon It by laws of In• State of Maryl11rnl, doe;; hereby granl parole 10;

ORANTMARKF
Co1J1111tmonl Nal1ltl It..\ Fir:<,

171572

02!18/1988 D.O.B,

Wh.owWJ ool')viotod of: i)tt1 1) 02 LIS1' OP HANDGUN IN COMMISSION OF 0<11\\E OF VIOLBNCE
3) 03 ATTJ;MPHO ROBBffiY WITH DEADLY WEAPON

CQurt(•): 1)035 BCl·CRl-CT
z) oao ecrcru-cr mao1 sos
>) uas SCl-CRJ.cT 11onmo1907

D:1te(s) sentenced: 21))0oJwionolaiia6o4
3) 03'\l511SS4

lerm(s): 1l y Iii•!\\ 000 000 2J <005 M00 oooo
3)Y010 M 00 DOJl()

from:

1)
<J Contlln'Cnl from 01/i lll19M
3) ConoJrronl 1/ortl 01110119113

Tracking Numbar(o):

0111012!128
Exp!rafiDfl

01ill4Ni8S tloh>(o) oloff•rno(•) Moy1.1991

on "Oflor

THEREFORE !he oald oommloslon does hereby ol1;ier role"'" on perola of!lia said offender from:

INSTRUCTIONS TO THE PAROLEE

Upon relss'8 you •hall be deemed to t<'moin Jn lo9al tu•k>dy !he explraUon of.your full, undiminished term of confintn1onl.

Upon the allsged vlolcilon ofany

of pamJ" you oholl to rernonded to tho oulhorl!yffilm which paroled, who"' o hcoring

c:h::ill ho

by ttlo P:iro!o C'ommit:£ion. If your pm!9 ie riVoked 1 thw

•pant oh perole, If any, which is to bG

to younerm of c:annnommil.

cMll ®kirmino tho 1mount ot tlrrio

are You subjecl ro !he special C<lndltlan• of Jl<ITTll• as se1 forth below, lh• standard cond!Uons ofparole on page i of 1his or<ler
and 1o such IUf1herY01JOl1Jons as tne Commission may Impose aLioy Vmo dunng term of your parole.

Sp2cfal MPC-64

11/07120G7)

LIS d OS07 791

JUL-01-2016 THUCa08s:e161:A1M6-cv-01021-ELH Document 23-3 Filed 07/08/16 Page 32 of 78 p, 008/031

OEC-18-2012 TUE 02:45 AM

p, 003

. No'"': Gf\IJNT MARK f

1. Submll m,

pay wiyroqiiJrod coats kt !l!l)! and ;:ill

tfatrnont prograr.r.i,

ahd

:l.!: d!roctad

I"""" l'"" by 'lha·DIV1Alon cf

brJd·Pl'Obi,tltm, Wl'llOlnmy fndl.lda

rnM!bl hi:i::®l,

0nd

Toke •ll lllOdloirlon< P""'Cflbl>d !>y ""'lmont pr.,ldor•

h1li111tgomont pnron1(f1;, doro0<1Qcvk;il&nt::11,

.:J. Pwmlts

of the: O'M!i!on dfl1Jm!i:i f.lnd

t11 vbil your home: ;:if ol'>yilma.

34.

dlreacrl your pa((lla/prob:.itloh agianl wlinVio Dll!lr:l\on o( Parole, srn:.f

"1SY

lnlon<lvo n:J)tlni11jl ""!uircmcnl>, spocl•llzod '" al!ond•r IT""1rllOIJI.

oomput&t rron!11;111ng.

'

p.lfliilTldor m1mll\IOITTM1 progn1tn4whlch

monllOrfn!J.

polJllr;,pn 1"11ng. M<!

I""' 35. ComplyTI"}th t:1ny O..tf.EIW

nlS.rf\t:riOJ'l.'! impasocl by rour P:c!rQb:lp!!!!bStiotJ

llmJtycUt :u:ci:in to ter'!;aln oflhi:i w11111'1W1it)'

•M/Qflo rotiuire )fOo IO obnlln porml.,lon ro your rt>IOonoo during oortsln !lour>.

with "Y Pro\Jtomwf>l<h I' c:rniW!ohod lo

m0nl1t>ryour

with lh"'' "'1ri<>loo" which m')'""'IJtli p,a)monl lor 00.lt! """'tiohld wilh GlobOl /'<>•IUcnlhg S)'lo!M (GPS) or

tocillno toohnokiav.

40_ Wolvc oll '"""'ditlon

to do :io.
snd P'O""""'• ond ogroo Jo <olum In lho

of Murjlorn! whon lntlruclO<I.

Oihor. CCNDITIONJ\l COMMUTATION OF GENTENCE: 1HE

OF '!HE SiAiE·O> MARYlANb, HAVINGTilO\IGHT PROPER

TfjE CoNOlnONAL GFV\NTING OF CLEMENCl;Y IN 'J'HIS CASE 1\1'10 UNDER THEAUTflORtTY VE$TEO eY llf\TICLE II, SECTION 20 OF

1'1E CORRECTION/\!. 8i;RVICES ARTICU:: OF TI1E ANNOTATED OOPE Of MhR'l'U\ND, OROS'<S '\llAT IBO ORIGINAL 8WTBIC£ TO

1HE cusrooy OF THE Dll'ISION OF COl>RtCT!ON B!;AND HEREBY CONDITIONALLv CQMMIJTEO AND GONDfTIONAL REMl'fmJ ro

llFE wrrn All BlfT 4S l'EARS SUSPENDED :5\JBJEGT TQ 1HE F()LlOwii'IG:

Aei

UH.Uu

AS01ftt'i..liii:'

CONDITION Ao PMOLfO COMMISSION DEEMS AS NECE$W\RY

•piEAsE

TllE EAE;C\JT\JIVE ORDER FOR l'Vlh PEF'INITION IX lilESP!;OAl CONDITIONS•

Home Plan
MARY GR.ANT Al/NT
N:ilflQ <Mid 'RgWJOJlllhfp
Employment Plan

2N. WOOD W§ BALTIMORE MD 212Zl
.Addl'd-'

410 352 2754 Pl'Hmo

Upon rel(*llle you ihall repo" In parson, no later ihan 10;00 AM_, oh 12119/2012 to lha Division of Parole and Probalion office

_, 2t 2100 Gulltoro Avenue 8sltlmore, MD 2121 g,

·-

MrC-54 (R1lvlood H/07/2!l07)

119 d OS07 .791 0

<<

1.7.L OL7

JUL-07-2016 THU C0a8s:1e6 1A:M16-cv-01021-ELH

Document 23-3

Filed 07/08/16

p, 009/031 Page 33 of 78

.,

CONDITIONS OF PAROLE

l Report as dlraoted lo end follow your Parola All•nfs lnslrucilons.
· 2, Work ragularty.
3. Get pennlsslon bcloro: a Qiang)ng your name; h. Changirlll your job; or c, Leaving th• S1alB of Maryland,
4. Obey all l•V<l..
5. Nutlfy your Parole Agent lmmodl>itely Ir you am arrnslsd. ·

6, You shall no!

P°""""· µll(l, or aelf any rnm;otlc dnJg, 'oonlrolled dao9erous substJnca", or

rafatod parapnernalla.

7. You •hall not P"'''"'""• use, or have under your control any llangarous w;ii>on ofany desorlptlon wlttmutapproval of the Paro1e'eomm1Gsion,

a. You ah;ill conduct yourself as not Ill presonta danger to yuursolror other...

9, Special oondftlaos: See p:ige 1 oflhls
a NOTE: ConrtlUons 10 and 11 apply lo parolaWI whos• tlitm of confinerrnm!rasulled from crime or odmes committed on
or af!Br May 1. 19Sl.

10. You most pay amonlhly

lee roquJrod..hy

tiie

you wholly or µaT11ytrom payment af lite fee.

1t If u•uuiuu hy U1• l'>lrulo C<>111m1"•lon to Uhdlll'g<> dntg or alG\,11ul """"" 1,,.11ng, you must pay rorllte tesffng if l>'qUlred lo da oo by t)Je OIVlslon of Pero/a and ProbaJion,

I have read, or have read to ms, lha fomgolnE colldlllolls of parola •nd any spoolBl condldons. IlllTIY undarstand lhom and I in conoldaratlllfl of gl'nnUng of parula to observo and ilblde by such condl0o!1' of pan;>le. Mer, I hereby waive
axlr<ldltlon j() .Iha strte of Maryland and G:<plBllsly agrae lJJat I wm no! c:onte;it any effort to return to 1he Stilts cf
In oonsequeni;e of my violating arid of !he IErms and (:Onolllons oftlils parole.

MPC.0.: IRir.mi 111U712007)
LIL d OSO? 79L OL7

Case 1:16-cv-01021-ELH Document 23-3 Filed 07/08/16 Page 34 of 78
APR-14-1016 THU 08:31 AM P. 004

efxtcutibt :lltpartmtnt
EXECUTIVE OlIDER OL01.W04.67

Conditioµa.l CommqtatjQn oUentem;e • Mil(\'. Washington BIQE!

Mllzy Waahiugton Brown, Conditional Grantee, waa convicted of First Degree Murdor on December 18, 1974, in the Crinrillal Court for
Baltimore City;

Mll!Y Washington l'lrown was, following her conviction for said crime, sentenoed to life imprisonment;

Mary Wasbington Brown, while incarcei:•ted, has boon an e:xen:iplaty Inmate. She has compiled an impressive record ofpraotioal wtructlo;n,
wot:k experilllloe, and lnlltitutionill progress;

The Mll!'Yla.nd Parole C!lmm:ission has conclu<kd that Mary Washington
Brown presently appe.ra to constitute no tbraat tc the sa.futy ofsociety,
and recommends tho granting of executive. cl!:ll'.llency; and

WHEREAS,

The intorests ofthe State ofMarylaml and ofthe Conditional Grantee will be served by the gr1111ting ooiuli.tiODal coillI)lutation of sentence to
Mary Washington Bro"'11.

NOW THEREFORE, I, ROBERT L. EHRLICH, JR., GOVERNOR OF THE STATE OJI MARYLAND, HAYING THOUGHT PROJ.'ER. THE EXTENSION OF Ct.EMBNCY UNDER THE AUTHORITY VESTED IN ME BY THE
CoNSTITimON AND THB LAWS OF MARYLAND, DO BEREBY ORDERTErATTHBORIGINALSBNTENCEOFMARY WASR)NGTON BROWN TO Tilll CUSTODY OF THE DIVISION OF CORRECTlON BE AND IS HEREBY CONDITLON.All.Y
COMMUTED TO A FIXED TERM: OF SIXTY YEARS SUBJECT TO Tiffi FOLLOWING;

A. Prior wparole eligi"bility, the Conditional Grantee shaU

complete twelve monlh• of work release, as

by the

Division ofCorrection, while observing goodbehavior;

:B. Ifthe Maryland Parole Colllll.lisaion detl'l1llines that the
Conmtional Grantee JUerits pwle release ofter the condition set forth
abovo ls sati:;fied, prior to paro(e releaae, the Mai:ylil!ld Parole Comlllisslon shall coordinate with Alternative Direotiooo, Inc. Directions) 1Jl im)llement the following reentryplan, which Macy Washington BroW:n etpressly agreed to comply with on Ootober 20, :W04:

Attachment E

Case 1:16-cv-01021-ELH Document 23-3 Filed 07/08/16 Page 35 of 78

APR-14 2015 THU 08:31 AM

p, 00 5

.(l) Upon teleaae from the DivJsion ofCotrection, Altemative
Directions will emure that the Corulitional Gtant.ee reports :immediately to the Division ofParole and Probation at 2100 Guilford Avenue, Baltimore, M:;rylanil 21218. The Conditional Grantee will tilke hor rele11J1e consent fbnn with her and !Ollow all directions of Parole and Probation;

(2) The conditional Grant.ee Will be requlred to rd.tend ooU!lSeling sessious al Alternative Directioiltl;
(3) Alt«rnative Directions wi'll refer the Conditional Grantee to the MarylandEducational Oppoltlmity Center to contiJrne her edllClltiOJl;

( 4)

DirectiOllS will assist fue Conditional GraD.tee

with hor job development efforts; and

(5) Altenultive DirectiOI!! will ref<;r the Coru!itio:nal Grantee to the North Baltimore Center fot oolll!Beling,

C. If

Directioru ceaseo to operate or cl!!lll.Ot provide the

services set forth in subsection Bin tbelr entirety, prior to pm:ole release,

the Maryland :Parole Coromieaion, tileDivi.Glon of Correctlnn, a State

Psychologist, and the Dr\tg and Alcohol Abl\l!e Admb.llstration shall

evaluate the Conditional Clrantee to dov:ise reentcy plan, whiclaball sot

forth special conditiol!il 0£ relo11Se, and coordinate with cornmunity"based

drug, alcohol, and mental health treatnient providers to socnre ti:ea1ment

services as reqcired alter re!eitae; and

D. hi tlw event flllbsection c controls, the Conditional C:Jrimtee must
agree to pl!rticipate in said drug, nlcohol, aud/or roental. health trea1ment rui required upon release and the service provider!! must be able to
treat the ConditiollOI Grantee ltmnediately,

GIVEN Under My Hru:ul ani:I the Great Seal of!he S1ate of Maryl11t1d, in the City of Annllpalii, thiB 25th Da.y ofNovember,
:2004.

Robert L. Ehl'lioh, Governor
AUEST:

Semtary of State

-------.- - - - - - - - - - - - - - - - - - - -

JUL-07-2016 THU 08:17 AM Case 1:16-cv-01021-ELH Document 23-3 Filed 07/08/16 Page 36 of 78
·MsN 2/09/OS No.

MARYLAND PAROLE COMMISSION
ORDER FOR RELEAsE ON PAROLE

WHEREAS, the Parole Commission, by vi:dne of the authority conferred upon it by the laws of the State of Maryland,

hereby grant pi-u:ok to:

\·JASl:lfNGTON BROWN
Commitment Name

#9(11457
DOC/PARIS No.

OOR
oon

who convicted of: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Date{s) sentenced: ferro;

BAUIN'.JRE CITY CIRCUIT mlmT - #17400351 12/18/7•/ SO WARS 01/19/74

'l'REREFoRE; the ::iidd Commission does hereby oi:der the release on

l$,'ME DITT'!!NTI.ON

01/19/203/.

(C<:tn.-ectional J.i'acility)

Par<lle EKpiration D a t e : - - - - - - - - -

of the

qff'endei: from:

])ate(s) of offense(s) committed oo. or after May I, 1991_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

INSTRUCTIONS TO THE PAROLEE

...··..

.

.p..o, qfmem'ent. Upon ,7,,

be deemed to remain in legal

until the expiration of your full, undiminished te.n::n. of

violation of any condition of parole' you shall be remanded to the authority from which paroled,

a hearing shall conducted by the Parole Commission. If yonr parole i.'l revoked, the OJromission shall determine the

: .:

o[ time speJ::1t

if any, which fa tu be credited to your if:nn ot confiuement

·

k

.

subject to t4t,i-s:Pecfa.J conditions of parole as set forth belowi the standard conditions of parole on page 2 of this order

further - . '·fl

th\!. Commission may impose at aJJ.y time during the tt:nn of your parole. .

"MFJ{I'AL HEALld i'REA'I'MENT OUU.TNF.!) TN

Manageme.4t If Rec0t1!U!ende-i by

Health

Under Tf..P AglceG>Oi.ent

·

Must °""Ply With All Components .;if '.!i\? Agreel1"Pt

Home and

M'IL')Rfff-1

.JOHFS(StSTER), 34.:tl

J>Jan; ·

21216, (410) 358-5700 OR (410) 233-1050

AW.Nf)Ey

MD. r
,·
(X)Al.ITI0N,

714

.AVENUE, BALTIM:)RE, ND., 21101

l!Jt:-i(kALL

U1;1on

yon shall report, in 1ters91\i_QR_!fier than 10:00 &Jn:-,.On the 4101..J (::.ij_,_lJ!u,_,)_) AVENUE,

Probation office located.at

(443) ... 3500

Telephone n o . - - - - - - - - -

11D.,

d:ay, tu the Division of Parole and Ll'l. !..H

·

1

Date
WHITE· Parolrii: • l'INJ! P11roJe Commlssiott Copy • YE:W'.-OW. CQ,rnctional Fa.cUlty Copy •BLUE Ci:-rtificd Copy· GREEN. O..urt 0.>py MPC·14 (RcviK.d i/00)

Attachment F

JUL-07-2016 THUC0a8s: e171:A1M6-cv-01021-ELH Document 23-3 Filed 07/08/16 Page 37 of 78 p 011/031
CONDITIONS. OF PAROLE :
1. :Re:Port as ill;i;ected to and follow your Pa:role Agent's instructions.

2. Work regularly.

3. Get permission befon:i:

a. Changing yow home;.

b. Changing your job; or

c. Leaving the State of Maryland.

4. Obey all laws.

5. Notify yow P<1role Agent immediately if you are mrested.

6. You shall. not illegally possess, use, or sell any narcotic drug, "controlled dangerous substance", or related paraphernalia.

·1. You shall not own, possess, ilse, sell, or have under your control any dangerous weapon or fueanns bf any

description without approval of the Parole Commission.

·

8. You shall so conduct yourself as not to present a danger to yourself or others.

9. Special conditions: See page 1 of this agreement.

NOTE: Conditions 10 and 11 apply to parolees whose term of confinement resulted from a crime or crimes committed on or after May 1, 1991.

10. You must pay a monthly supervision fee as required by law unless the Parole Commission exempts you wholly or partly from payment of the fee.

11. Xf ordered by the Parole Commission to undergo dnig or alcohol abuse testing, you must pay for the testing if requi.i:-ed to do so by the :Division of Parole and Probation.

l have read, or have had read to me, the foregoing conditions of parole and any special conditions imposed 01 page 1 of this agreement. I fully understand them and I agree, in consideration of granting of parole, to observe am
abide by such conditions of parole. Flli-ther, I hereby waive extradition to the State of Maryland and expressly agre(
that I will not contest any effort to return to the State of Maryland in consequence of my violating any of the term:
and conditions of this parole.

Signature of Parolee.

OOG #901457

Date

Witness

Jv.IPC-15 (Revised 11/99)

WBITE - Parolee • PINK - rarole Co!01'Jisoion Copy • YELLOW - Institution Copy • BLUE - Cortified Copy · GJUlm - Court Copy

JUL -0J- 2016 THUCa0s8e: 118 :1AM6-cv-01021-ELH Document 23-3 Filed 07/08/16 Page 38 of 78 p, 013/031

P/N
DOC #: 901457 BROWN

OBSCIS REPORTING FUNCTIONS OFFENDER TRAFFIC HISTORY

MARY

WASHINGTON

PAGE:

001

DATE:. 07/07/16

TIME:

08:11

DATE TIME LOCATION BLOCK TIER CELL BED

REASON

PER

02 13 2006 13 38 SEE REASON

84 PAROLE

LAWRENCE D

D

11 22 2005 13 44 HOME DETEl'il

01 ADMIN

LAWRENCE D

D

07 12 2005 12 20 BAlll'O PRER

B

014 B

03 HOUSING

MCCLENDON J

04 12 2005 12 30 BALTO PRER

A

014 B

03 HOUSING

MCCLENDON J

01 11 2005 14 00 BALTO PRER

B

019 D

03 HOUSING

YOUNG ELVA

12 21 2004 13 15 BALTO PRER

B

015 B

01 ADMIN

ALEXANDER M M

10 26 2004 12 50 WOMENS INS B

2

131 B

18 RET MED AP BOGUES C

10 26 2004 10 05 SEE REASON

32 MED APPT BOGUES C

10 13 2004 16 45 WOMENS INS B

2

131 B 18 RET MED AP WEST, R

10 13 2004 13 55 SEE REASON

32 MED APPT WEST, R

08 18 2004 15 28 WOMENS INS B

2

131 B

18 RET MED AP TAYLOR V

08 18 2004 12 45 SEE REASON

32 MED APPT QUEEN D

07 20 2004 14 00 WOMENS INS B

2

131 B

03 HOUSING

QUEEN D

07 16 2004 11 45 WOMENS INS 192B 2

610 B

03 HOUSING QUEEN D

07 14 2004 14 00 WOMENS INS 192B 2 07 08 2004 12 10 WOMENS INS 192D 2

•. 601 B
819 s

03 HOUSING TAYLOR V 18 RET MED AP QUEEN D

07 08 2004 07 35 SEE REASON

32 MED APPT QUEEN D

INQUIRY ONLY.

Case 1:16-cv-01021-ELH Document 23-3 Filed 07/08/16 Page 39 of 78

APR-14-2016 THU 08:32 AM

P. 0I0

•11/15/2603 12:23

·

'·

..

4169742077
4!07AM I MD SEC Of $lAlt

GOV OFC LC RA

02 N0.619 p,i/(8

· iexccutibt :.IDtpartnttnt
EXECU'rrvE ORDER OLOUoo;,3:;

WHEREAS,

. Oo.Sepilllnbor )$, 1978, Ji;."111.\L)'®Jlrisd,

tl\Elo

IOVlllll•ll!l yeor• Of ago, WU ¢On'9iotii<l ofMunier, Aud CollSPillwY

to Collll11it Mtntl"';

, l.aron t}'ll!l Flied WI\! e¢nl!l>)O•d tho ludse Jobn !l. Raine,
. Ji. to llil:: lmpd.lolllll•ut, with a eoncw:rfllit tenn o!!l.vo years on the ·: ohargo of CollfPilAAY to Conunl1 Murclei1

On Augu;it 2$. fuds• -!chi.. boliofthat ".Karan
l'r\od lw Mbfovoo maximum rebabilitillon and.ha. re-.mu.d till: : point wh.... •he Gnollld bi; patolod;"

On September8, 199,1, a

pmel of the Citcult Court of

· llaltlmoro CDll!lt)' fuimcl tba1Mi9S l'l:l•d's ittogte•& dllrlng
· iuooroemtlo11 hod becn ox""'!'l"'l', .Ker aohlOVll!ll<mt In educllliou

and 'PPllrent

had b«m oo!OVV"'1Jiy and highly

appllll!:ed ta hltV'o e.lnOd the o)?l'lrn:timlt)I tu b•

consldliretl fur

111!.oa.e lh>m oonfu:l<l!Dent

'

Koren Ly:uu wW• !ncarcoratoa, has eiu:o.ad bee GED, and

.' ""!i•god ho.t1olf \n awide of•olf·help

lnolllmng

Alcoholic• ai;d J:ifai:ooti.:.; MOU)ll1;10U8, JUnetion Erid!:e, Drng

· Awareru1ss, DeoJlliQ;n Making, Altemotlvo io Violence, Soil

and J

! Katon L)'m; l!rlod!w a ccmrireh.,,.ive •"!'Port notwnrk in place up011 toonny;

' Th* ¥arr11Wd Co=i••ion hso o•ll<l!ldod 1hat !WOil L)'mt

Nod, ccntri1'1 "'14

nppo1t1 tO

oonSti!\\CO n<> !broat to th•

Qf,ooiaty1 mdWCO)lll1l'1lds hO!f

: •entenoo I<> be

to atmn 0£ forly-f!•e Y"1ltR; lll)d

l))a lil!er•l!tll of the Stale ofMazyl!iJ!d mid of1lle Onmtee will host

' '"""'\! comm11iatioii of the

·

Attachment G

.

------------,----

Case 1:16-cv-01021-ELH Document 23-3 Filed 07/08/16 Page 40 of 78

APR-14-2016 THU 08:32 AM

p, 011

, 11/15/2M3 12: 23
· NOV .15. 2003 a;

' MD i;;;:t OF" STATE:

GOV OFC LC RA

N0.618

PAGE 03 P.2/1:3

.

lfOW, '.l'HER.Ef'ORil. )'., R(>BJ>RT L, Eal!LJC!:l, Jl<., GOV!mNOR OF THE S'l'A'n!

· MARY'l.AND, BY VllU'lJE C)l T:flRA.tl'.raO!Urr VESTED lN
Mll E\Y Tttll CONSTITUTIONmp LAWS OF MA.RYLAW,

REl<B.BY OlIDEl\ 'l'.ll.AT THE OJUG!NA.I.

OF

' K/\RE)\I L"\'}W liRl!ID TO THlS Ct!STODY OF T!lll PIVWO}!

OF COlUUl,ctroNBE AN:l:l l$

COMM!)TJID TO II

, ?:'.WM OF FORTY•FNJ>

Cll'\IEN Undor ll{y bond an,d th• l'.lr¢at Seal a.f'lho $tote of
:NM¢;avr0ym!l\nbder,,fli)otoh3o.CJ1y ofAmlaponi, Ibis D•r

It. K'A"l Aumonn Sooromry of Stato
'/

JUN-2C7-a20s1e5 1MO:N1609-:c29v-A0M1021-ELH

Document 23-3

Filed 07/08/16

p, 00 2
Page 41 of 78

09/14/05

JCJ
N<:>. __44_2_02__

MARYLAND PAROLE COMMISSION
ORDER FOR RELEASE ON PAROLE

the Fa.tole Commission, by virtue of the authority t:0:t1ferred upi:n:.i lt by tbe laws of the State of M;icyland, \loes

hereby grant parQle to;

KAREN LYNN FRIED

DOC #902530

DOB: 02/09/1961

Commitment Name

DOCl?Af!.IS !lo.

DOl!

MURDER 1sr DEGREE
who wall convicted of; - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Court:

Baltimore County Circuit Court #f,1477

Date(s) sentenced:

09/15/1978

Tenn:

45 years

From:

03/24/1978

the said Commission does hereby order the :release 011, piirole of the llOME llEJ'ENITON UNIT (Correctional Facility)
Farole Expiration Date:

qffender from:

Date(s) of offense(s) committed on Qr after May lj 1 9 9 1 - - - - - - - - - - - - - - - - - - - - - - - -

INSTRUCTIONS TO THE PAROLEE
VP-On r:de.aSe, you shall be deemed to l,'t!lll.ain in legal custody until the expiration of your tun, undiminished ten:n ·of
continement Upon the alleged violation of any wndition of varole you shall be remanded to the authority from which paroled1 where a hearing shall be condm:ted..Qy the Piu:ole Commission. If your 'parole is revoked, the Conn:u.itlsion shall determil:le the amount of thne spent Qn parole, j( any, which is to be credited to your term of confineme:ut.·
Y0n. are subject to the special conditions of parole as s:et forth. below, the sta:udanl conditions of parole on page 2 of this order
.and such further conditions as the Commissio:u may impose at any time during the term of your parol£.
Special Condition{&):

JOYCE WllLIAl'lSON (friend) 12005 Tarragon Road, Reisterstawn, MD 21136
llome and Employmmt Plan! - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
TEL: (410) 526-5280
Upo.:u i:elease, you shall report, in pei:3oo, 110 later than 10:00 s.m. on the next bmS<ine.ss day, to the Division of Parole and J'l;'t;lbation office located at 3939 Reisterstown Road, Baltimore MD 21215
Telephone no. 410-367-6600

Commissionmc

V ·

WruTE- Parolee •PINK Parole CommL..i11n Copy •YELLOW - Correctio111U Facility Capy •»LUE MPC-14 (Revised 1/00J

SEP'!JiMBER 15, 2005 Dare
Copy· GREEN· Court Copy
Attachment H

JUN-27-2016 MON C0a9:s2e9 1A:M16-cv-01021-ELH Document 23-3 Filed 07/08/16 Page 42 of 78 p, 003
CONDlTIONSOFPAROLE
1. Report as directed to and follow your Parole Agent's instnictions.
2. Work regularly.
3: Get pemrission before:
a. Changing your home;
b. Changing your job;· or
c. Leaving the State of Maryland.
4. Obey all laws.
5. Notify your Parole Agent immediately if you are arrested. -
·6_ .You shall not illegally possess, use, or sell any narcotic drug, "controlled dangerous substJlnce," or related paraphernalia.
7. You shall not own, possess, use, sell, or have under your control any dangerous weapon or :firearms of any description without approval of the Parole Commission.
8. You shall so conduct yourself as not to present a danger to yourself or others.
9. Special conditions: See page 1 of this agreement.
NOTE: Conditions 10 and 11 apply to parolees whose te= of confinement resulted from a crime or ciimes committed on or after May 1, 1991.
.10. You must pay a monthly supe.rv:i.sion fee as required by law unless the Parole Commission e:»l'ropts you wholly or partly from payment of the foe.
ll. ff ordered by the Parole Commission to undergo drug or alcohol abuse- testing, you must pay · fo:i:- the testing if required to do so by the Division of Parole and Probation.
I have read, or have had read to me, the foregoing conditions of parole and any special conditio:os imposed on page 1 of this agreement I fully understand them and I agree, in consideration of granting of parole, i:o observe and abidt by such conditions of pai:-ole. Further, I hereby waive extradition to the State of Maryland ao.d expressly agree that I will not contest any effort to returu me to the.State of Maryland in conseqnenct: of my violating ao.y of the teuns and conditions of this parole.
DOC #902530 Signature of Parolee
Date
Witness MPC-15 (Revised 11/99)
WEITE-<'•,<>l<'" • PINK-l'arole Commission Copy • YBILOW-Iret\tution C0py • :SLUB-Cmified Copy • OREEN--Onut CoJ?Y

JUL-07-2016 THUCa08s:e181:1AM6-cv-01021-ELH Document 23-3 Filed 07/08/16 Page 43 of 78 p 015/031

P/N DOC #: 902530 FRIED

OBSCIS REPORTING FUNCTIONS OFFENDER TRAFFlC HISTORY

KAREN

LYNN

PAGE:

001

DATE: 07/07/16

TIME: 08:12

DATE TIME t,OCATION BLOCK TIER CELL BED

09 15 2005 15 21 SEE REASON

07 13 2005 15 33 HOME DETEN

07 13 2005 10 45 BALTO PRER

04 09 2005 )_O 00 BALTO PRER

A 009 A

02 15 2005 )_)_ 39 BALTO PRER

B 003 A

10 21 2004 14 00 WOMENS INS A

1

023 A

06 16 2004 18 55 WOMENS INS A

1 002 A

06 16 2004 11 42 SEE REASON

03 26 2004 13 30 WOMENS INS A

1 002 A

03 26 2004 08 15 SEE RE:l\SON

10 03 2003 12 00 WOMENS INS A

1 002 A

10 03 2003 08 20 SEE REASON

08 29 2003 14 00 WOMENS INS A

1 002 A

Ol 15 2003 14 00 WOMENS INS A

1 029 A

06 25 2002 14 00 WOMENS INS A

2 130 B

06 14 2002 14 00 WOMENS INS A

2 106 B

10 31 2001 14 00 WOMENS INS A

1 023 B

INQUIRY ONLY.

REASON

PER

84 PAROLE

JOHNSON D

01 ADMIN

LAwRENCE! D

D

Ol .llDMIN

CORCORAN, DAYENA

03 HOUSING ZOLLICOFFER

01 ADMlN

ZOt,LICOFFER

03 HOUSING TAYLOR V

27 RET FR COU TAYLOR V

31 COURT APPR BOGUES C

27 RET FR COU QUEEN D

31 COURT Al?PR QUEEN D

27 RET FR COU TAYLOR V

31 COURT APPR BOGUES C

03 HOUSING DAVIS K

K

03 HOUSING BLANDING Z

03 HOUSING BLl\NDING Z

03 HOUSING BLANDING . Z

.03 HOUSING TAYLOR V

JUN-22-2016 WED 09:04 AM

p 008/013

Case 1:16-cv-01021-ELH Document 23-3 Filed 07/08/16 Page 44 of 78

ORDER FOR RELEASE ON PAROLE

The Patole Commission, by virtue of the authority conferred upon it by the laws of the State of Maryland, does hereby gi:ant parole to:

(True Name)

Milton lillJJlphrey

#193624

n.o.n. 09/13/69

(Commitment Name/ s)

Degxee Murder; Use of

who was co(lvicted of: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

Court:

B.ilt:i,mo;r:e City Circuit Cou.rt - #18727514 ',

Sentem:::ed:

08/10/88

Term:

From:

10/06/87;
Therefore, the said Commission does hereby order the release on parole of the said prisoner from HOUSE OF CORRECTlONS
- (Correctional lnstitution ·or Jail)

The Parolee, upon release, shall be deemed to remain in legal custody undl the expiration ofthe full, undiminished term and upon violation of any condition of his parole shall be remanded to the authority from which paroled, where a hea.1'ing shall be conducted by the Parole Commission. If parole is revoked, the Commission shall determine the amount of time spent on parole,
:if any, which shall be credited to the parolee.

Tbis order js subje<::t to the rules, regulaHons and conditions of tbis parole as set forth below and on page 2 of this agreement, and such further conditions as tbe Commission may impose at any time during the period of parole.
Upon be.ing released, report to the Division of Parole and Probation office located at 2100 Guilford

Tele. (410)333-6469 _.....

:?>V\.RYLAl"ID PAROLE COMMISSJ:Ol'l

F..>;piratlon Date: Ll'.FE

Commissioner

Special Condition(s):

is to Slibmit Writteu Report on d Qudrterly

t:o .the M.:tryl.,i.nd Pd.role Commi.s.s;ll)n.

Md.y 20, 1999

l:!.ome/Ernpioyment Plan.: (li) .Joseph Richey

820 North Eut:.dw Sr.., J3d.ltiraore. Mn 21201

Tele.(410)523-2150 contd.ct:

Rawtin

Anyone" .serving a sentence for a crime coilllJ)..itted on or after May 1, 1991 must pay sµpervision and/or dnig testW,g fees as prescribed in Article 41, Sectiou 4,519 of the Annotated Code of Maryland.

Date(s) of.Offense(s) :_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

MPC-14- (R,£V[S£!18/15/96)

-1-

WHITE- Pa((>].,, • PJNK - h.role Commisilon Copy • YBUOW - fosliruiion ¢opy • BLUE - Certified Co1>y • GREEN - C-0urt Copy

i)

Attachment I

JUL-07-2016 THU 08: 19 AM Case 1:16-cv-01021-ELH

Document 23-3

Filed 07/08/16

Page 45 of 78

p, 017/031

P/N DOC #: 193624 HUMPHREY

OBSCIS REPORTING FUNCTIONS OFFENDER TRAFFIC HISTORY
MILTON

PAGE:

001

DATE: 07/07/16

T!ME:

08:14

DATE

TIME LOCATION BLOCK TIER CELL BED

05 20 1999 14 30 SEE REASON

04 30 1999 22 16 *MHC NOT I HOSP

009

04 30 1999 22 15 *MHC NOT I 0000 0

000 00

04 22 1999 23 44 SEE REASON

04 17 1999 21 00 *MHC NOT I HOSP
04 17 1999 21 00 *MHC NOT I 0000 o

009 000 00

04 10 ;1999 22 30 SEE REASON

03 31 1999 21 00 *MHC NOT I HOSP

009

03 27 19$9 06 00 SEE REASON

03 16 1999 13 00 *MHC NOT I HOSP

009

03 16 1999 09 50 SEE REASON

02 10 1999 l4 00 *MHC NOT I HOSP

009

02 10 1999 07 30 SEE REASON

01 07 1999 13 24

NOT I HOSP

009

01 07 1999 08 00 SEE REASON

01 05 1999 15 SI *MHC NOT I HOSP

009

01 05 1999 12 35 SEE REASON

INQUIRY ONLY.

REASON

PER

88 MED/PAROLE DENNARD, HATTIE

03 HOUSING JOHNSON V

18 RET MED AP JOHNSON V

60 UNIV B'OSP JOHNSON V

04 MEDICAL JOHNSON V

J_8 RET MED AP JOHNSON V

60 UNIV HOSP JOHNSON V

l8 RET MED AP MARKS, KIM

32 MED APPT JOHNS, ZEN!A

18 RET MED AP JOHNS, ZENIA

32 MED APPT .JOHNS, ZENIA

18 RET MED AP RICHARDSON, CHER

32 MED APPT JOHNS, ZENIA

18 RET MED AP JOHNS, ZENIA

32 MED APPT WILLIAMS, RHONDA

18 RET MED AP WILLIAMS, RHONDA

32 MED APPT W!LLIAMS, RHONDA

JUL-07-1016 THUCa08s:e191:1AM6-cv-01021-ELH Document 23-3 Filed 07/08/16 Page 46 of 78 p, 018/031

P/1

PARIS

PAGE: 01

P.I. #

193624

CASE INFORMATJ:ON B

DATE: 07/07/16

D.O.C. # 193624

TIME: 07:47

S.I.D. # 1029693

HUMPHREY

MILTON

LOCATJ:ON: MHC

MV-RSN: 88 MED/PAROLE MV-DT: 05 20 1999 MAX:

BIR'.l'H DATE: 09 13 1969

SEX: M RACE: B TOT SENT LENGTH:

y M

D

ACTION, SEQ# :

01

02 CS TO 01 .

SENTENCE TYPE: 15 LIFE ORG

03.CS

OFFENSE CODE : 540 WEAPONS OFF

536 WEAPONS OFF

OFFENSE DESC. : WEAPONS OTHER

CARRY DEADLY WEAPON

OFFENSE DATE : 08 28 1987

SENTENCE DATE: 08 10 1988

08 10 1988

SENT START DT: 10 06 1987

SllNT LENG'.l'H

y

M

D

013 y

M

D

y

M

D

COURT

030 BCI-CIR-C

030 BCI·CIR-C

TRACKING #

INDICTMENT # 18727514

18727514

OBSI COMMENTS:

RESTITUTION

$ _ __

$ _ __

$ _ __

COMM COMMENTS:

ACM

DET DAT/.'.JURIS:

LIFTED DATE

NO MORE LEGAL-DETAINER SEGMENTS FOUND

Attachment J

JUL-07-2016 THU 09:28 AM

p, 00 2

Case 1:16-cv-01021-ELH Document 23-3 Filed 07/08/16 Page 47 of 78

(810847)

(INQ)

OBSCIS II CLASSIFICATION DATA

DATE: 07/07/16 TIME: 1025190

P/P#: 2901760. CLIENT NAME: HUMPHREY, MILTON

D.0.B.: 09/13/69

AGENT NAME: STEWART, S

OFFICE: 23 PAROLE SUJ?ERVISI TERM: QO

TY'PE OF CASE:

PAROLE

DATE CASE OPENED: 05/20/99

SUPERVISION LEVEL: LMD

DATE SUPV ASSIGNED: 06/16/99

CASE STATUS:

CLOSED

DATE STATUS EFFECT: 06/09/99

EXPIRATION DATE: INDETERM

SJ?ECIAL CONDITIONS: NONE ALCOH DRUG PSYCH MAX OTHER FCR

ORDERED:

X

x x

OUTCOME:

S

S

D

OUTCOME CODES: S=SATISFIED/PAID IN FULL P=PARTIALLY SATISFIED U=UNSATISFIED

D=DEEMEP UNCOLLECTABLE T=UNCOLLECTABLE BY TERMINATION Y=STAYED

C=SATISFIED BY COMM: SERVICE R"REFERRED TO CCU

DATE CASE CLOSED:

06/09/99

SPECIAL PROGRAM: M

TYPE OF CLOSE:

DEATH

ENI:ER=IDENT INQ

INQ PF3=SUBMENU PF4=MAIN MENU PF5=CASE SUMMARY

PF6=PROBATION WAR/SUM INQ

WAR/SUM INQ J?F9=CASE RECORD INTAKE

Attachment K

6/2412016

Case Information
Case 1:16-cv-01021-ELH Document 23-3 Filed 07/08/16 Page 48 of 78

Case Information

Go Back Now

Court System: Circuit Court for Howard County - Criminal System

Case Number: 13K87017186

Title:

State Of Maryland vs Howard Earl Simms

Case Type:

Indictment Filing Date: 12/17 /1987

Case Status:

Closed/Inactive

Case Disposition: Guilty Disposition Date: 02/03/1989

District Case No: 609194TS

Defendant Information

(Each Alias, Address, and Attorney for the Defendant is displayed)

Name: Simms, Howard Earl

Race: African American Sex: M Height: 5'7" Weight: 150 DOB: 10/06/1944

Address: Division Of Correction

City:

Baltimore State: MD Zip Code: 21202

Address: JCI #197429

City:

Jessup State: MD Zip Code: 20794

Attorney(s) for the Defendant

Name:

Hanson, Esq, Carol A

Appearance Date: OS/22/2007

Practice Name:

Address:

District Public Defender

City:

Ellicott City State: MD Zip Code: 21043

Name:

Shefferman, Esq, Brian D

Appearance Date: 10/25/2006

Practice Name: Office Of The Public Defender

Address:

100 W. Patrick Street

City:

Frederick State: MD Zip Code: 21701

Court Scheduling Information

Event Type: Three Judge Panel Review Notice Date: 06/20/2007

Event Date: 08/06/2007 Event Time: 01:30 PM

Resu It:

Cancelled/Vacated Result Date: 07 /18/2007

Event Type: Three Judge Panel Review Notice Date: 07 /18/2007

Event Date: 09/06/2007 Event Time: 01:30 PM

Result:

Held/Concluded Result Date: 09/06/2007

Charge and Disposition Information
(Each Charge is listed separately, The disposition is listed below the Charge) Charge No: 1 CJIS Code: 1 2299 Statute Code: 27.30 Charge Description: Burglary - Int/Steal/Day Offense Date From: 11/17 /1987 To: Arrest Tracking No: Citation: Charge Amend l\Jo: 0 Sentence Version: 1 Charge Class: F Disposition http://casesearch.courts .state.md.us/casesearch/inqui ryD etai I.jis?caseld= 13K87017186&1oc=62&detai ILoe= K

Attachment L
1/6

. -,- - - - - - - - - - - - -

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Case Information

Case 1:16-cv-01021-ELH Document 23-3 Filed 07/08/16

Plea:

Not Guilty Plea Date: 02/01/1989

Disposition: Guilty Disposition Date:02/03/1989

ail

Life/Death:

LIFE

Jail Term:

Yrs: 0 Mos: 0

Suspended Term: Yrs: O Mos: 0

Unsuspended Term: Yrs: 0 Mos: 0

Days: 0 Days: 0 Days: 0

Hours: 0 Hours: 0 Hours: 0

Probation

Probation:

Yrs: Mos: Days: Hours:

Supervised

Yrs: 0 Mos: 0 Days: 0 Hours: 0

o Unsupervised : Yrs: 0 Mos: 0 Days: Hours: 0

Fine

Fine Amt: 0 Fine Suspended Amt: 0 Fine Due: First Pmt Due:

Community Work Service

Hours: Report To:

Complete By:

Report Date:

Page 49 of 78

Charge No: 2 CJIS Code: 3 2400 Statute Code: 27.342

Charge Description: Theft: $300 Plus Value

Offense Date From: 11/17/1987 To:

Arrest Tracking No: Citation;

Charge Amend No: 0 Sentence Version: 0 Charge Class: F

Disposition

Plea:

Not Guilty Plea Date: 02/01/1989

Disposition: Aquitted Disposition Date:02/03/1989

Charge No: 3 CJIS Code: Statute Code: 27.342

Charge Description: Theft:Less $300 Value

Offense Date From: 11/17/1987 To:

Arrest Tracking No: Citation:

Charge Amend No: 0 Sentence Version: 1 Charge Class: M
Disposition

Plea:

Not Guilty Plea Date: 02/01/1989

Disposition: Guilty Disposition Date:02/03/1989

llail

Life/Death:

Jail Term:

Yrs: 0 Mos: 18 Days: 0 Hours: 0

Suspended Term: Yrs: 0 Mos: 0 Days: 0 Hours: 0

Unsuspended Term: Yrs: 0 Mos: 18 Days: 0 Hours: 0

Fine

Fine Amt: 0 Fine Suspended Amt: 0 Fine Due: First Pmt Due:

Community Work Service

Hours: Report To: Report Date:

Complete By:

Charge No: 4 CJIS Code: 3 2399 Statute Code: 27 .342

Charge Description: Theft: Less $300 Value

Offense Date From: 11/17/1987 To: Arrest Tracking No: Citation:

Charge Amend No: 0 Sentence Version: 0 Charge Class: M

Disposition

Plea:

Not Guilty Plea Date: 02/01/1989

Disposition: Aquitted Disposition Date:02/03/1989

Charge No: 5 CJIS Code: 1 2900 Statute Code: 27.111

http://casesearch.courts. state .m d.us/casesearch/inqui ryD etai I.jis?caseld= 13K87017186&1oc=62&detaiILoe= K

216

6/24/2016

Case Information

Charge DescripCtioans: eM1a:l1ic6io-cuvs-D01es0t2ru1c-tEioLnHOf DPorocpuemrtey/nVta2lu3e-3LesFsiTlehdan07$/30080/16

Offense Date From: 11/17/1987 To:

Arrest Tracking No: Citation: Charge Amend No: 0 Sentence Version: 0 Charge Class: M

Disposition

Plea:

Not Guilty Plea Date: 02/01/1989

Disposition: Aquitted Disposition Date:02/03/1989

Page 50 of 78

Sentencing Net Totals

Life Sentence plus 0 Years, 18 Months, 0 Days, 0 Hours is Imposed. Serve Time: Yrs: 0 Mos: 18 Days: 0 Hours: 0 Probation : Yrs: 0 Mos: 0 Days: 0 Hours: 0 Fine Amount: 0 Fine Due Date: CWS Hours: 0 Credit Time Served: 6601
Related Person Information
(Each Person related to the case other than the Defendant is shown)
Name:State Of Maryland Party Type: Plaintiff City: State: Zip Code:
Attorney(s) for the Related Person

Name:

Lank, Esq, David A

Appearance Date: 10/25/2006

Address:

The Carroll Building

City:

Ellicott City State: MD

Zip Code: 21043

Document Tracking

(Each Document listed. Documents are listed in Motion No,/Sequence No. order)

Doc No./Seq No.: 1/0

File Date:

12/17/1987 Entered Date: 01/19/2007

Document Name: See Docket Sheet for Previous Entries

Doc No./Seq No.: 2/0

File Date:

01/19/2007 Entered Date: 01/19/2007

Document Name: Reopen/Modification

Doc No./ Seq No.: 3/0

File Date:

10/25/2006 Entered Date: 01/19/2007

Party Type:

Plaintiff Party No.: 1

Document Name: Attorney Appearance

David A Lank

Doc No./Seq No.: 4/0

File Date:

10/25/2006 Entered Date: 01/19/2007

Party Type:

Defendant Party No.: 1

Document Name: Defense Attorney Appearance Filed

Brian D Shefferman

Doc No./Seq No.: 5/0

File Date:

09/28/2006 Entered Date: 01/19/2007

Party Type:

Defendant Party No.: 1

http://casesearch. courts .state.m d. us/casesearch/i nqui ryDetai I.j is ?caseld= 13K87017186&1oc=62&detai ILoe= K

316

-- ----,- - - - - - - - - - - - - - - - - - - - - - - -

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Case Information

Document NameC: Aapspeli1ca:1ti6o-ncvfo-0r 1R0e2vi1e-wEoLfHSenDteonccuement 23-3 Filed 07/08/16 Page 51 of 78

Doc No./Seq No.: S/1

File Date:

10/2S/2006 Entered Date: 01/19/2007

Party Type:

Defendant Party No.: 1

Document Name: Correction to Application for Review of Sentence

Doc No./Seq No.: S/2

File Date:

01/11/2007 Entered Date: 01/19/2007

Party Type:

Plaintiff Party No.: 1

Document Name: State's Motion to Oppose Review of Sentence

Doc No./Seq No.: 6/0

File Date:

10/10/2006 Entered Date: 01/19/2007

Party Type:

Plaintiff Party No.: 1

Document Name: State's Motion to Extend Time Requirements for Filing a Response to Defendant's

Petition for Review of Sentence

Doc No./Seq No.: 9 /0

File Date:

OS/11/2007 Entered Date: OS/11/2007

Document Name: Hearing Notice Issued

Doc No./Seq No.: 10/0

File Date:

OS/11/2007 Entered Date: OS/11/2007

Document Name: Writ of Habeas Corpus Issued

Doc No./Seq No.: 11/0

File Date:

OS/22/2007 Entered Date: OS/29/2007

Party Type:

Defendant Party No.: 1

Document Name: Defense Attorney Appearance Filed

Carol A Hanson

Doc No./Seq No.: 12/0

File Date:

OS/29/2007 Entered Date: OS/29/2007

Document Name: Hearing Notice Issued

Doc No./Seq No.: 13/0

File Date:

OS/22/2007 Entered Date: OS/29/2007

Party Type:

Defendant Party No.: 1

Document Name: Request for Speedy Trial

Doc No./Seq No.: 14/0

File Date:

OS/22/2007 Ente1·ed Date: OS/29/2007

Party Type:

Defendant Party No.: 1

Document Name: Request for Discovery,and motion to produce documents

Doc No./Seq No.: lS/O

File Date:

OS/22/2007 Entered Date: OS/29/2007

Party Type:

Defendant Party No.: 1

Document Name: Motion Pursuant to MD rule 4-252

Doc No./Seq No.: 16/0

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612412016 File Date:

Case Information
Case 1:16-cv-01021-ELH Document 23-3 Filed 07/08/16 Page 52 of 78
06/20/2007 Entered Date: 06/20/2007

Document Name: Hearing Notice Issued

Doc No./Seq No.: 17 /0

File Date:

06/20/2007 Entered Date: 06/20/2007

Document Name: Writ of Habeas Corpus Issued

Doc No./Seq No.: 18/0

File Date:

07 /18/2007 Entered Date: 07 /18/2007

Document Name: Hearing Notice Issued

Doc No./Seq No.: 19/0

File Date:

07 /18/2007 Entered Date: 07 /18/2007

Document Name: Writ of Habeas Corpus Issued

Doc No./Seq No.: 20/0

File Date:

07 /18/2007 Entered Date: 07 /18/2007

Party Type:

Defendant Party No.: 1

Document Name: Writ of Habeas Corpus Issued

Doc No./Seq No.: 21/0

File Date:

07 /18/2007 Entered Date: 07 /18/2007

Party Type:

Plaintiff Party No.: 1

Document Name: Hearing Notice Issued

Doc No./Seq No.: 26/0

File Date:

09/18/2007 Entered Date: 09/18/2007

Document Name: Amended Commitment Record Issued

Doc No./Seq No.: 27 /0

File Date:

10/11/2007 Entered Date: 10/15/2007

Document Name: Reopen/Modification

Doc No./Seq No.: 28/0

File Date:

10/11/2007 Entered Date: 10/15/2007

Document Name: Motion to Reconsider Sentence

Doc No./Seq No.: 29/0

File Date:

10/31/2007 Entered Date: 11/05/2007

Party Type:

Defendant Party No.: 1

Document Name: Motion for Reconsideration of Order Denying Motion for Reduction of Sentence

Doc No./Seq No.: 30/0

File Date:

11/06/2007 Entered Date: 11/06/2007

Document Name: Notification to Return Exhibits

Doc No,/Seq No.: 31/0

File Date:

11/13/2007 Entered Date: 11/13/2007

Party Type:

.Defendant Party No.: 1

Document Nan1e: Notice of Appeal

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6/24/2016

Case Information
Case 1:16-cv-01021-ELH Document 23-3 Filed 07/08/16 Page 53 of 78
Filed by Attorney: Carol A Hanson Esq

Doc No./Seq No.: 32/0

File Date:

12/04/2007 Entered Date: 12/04/2007

Document Name: Letter to Reporter Re: Transcripts

Doc No./Seq No.: 33/0

File Date:

12/06/2007 Entered Date: 12/07 /2007

Party Type:

Defendant Party No.: 1

Document Name: Defense Attorney Appearance Filed

Geraldine K Sweeney for purposes of appeal only

Doc No./Seq No.: 34/0

File Date:

01/10/2008 Entered Date: 01/10/2008

Document Name: Record Sent to COSA - 1-folder & 1-transcript

Doc No./Seq No.: 35/0

File Date:

01/15/2008 Entered Date: 02/05/2008

Document Name: Certified Mail Receipt Received from C05A

Doc No./Seq No.: 36/0

File Date:

02/28/2008 Entered Date: 03/04/2008

Document Name: Receipt for Record from - COSA

Doc No./Seq No.: 37 /0

File Date:

04/22/2008 Entered Date: 04/22/2008

Document Name: Mandate fd. and iss. - appeal is hereby dismissed as not allowed by law

Doc No./Seq No.: 39/0

File Date:

09/09/2014 Entered Date: 09/09/2014

Party Type:

Defendant Party No.: 1

Document Name: Motion to Reconsider Sentence

Doc No./Seq No.: 39 /1

File Date:

09/24/2014 Entered Date: 09/24/2014

Party Type:

Plaintiff Party No.: 1

Document Name: State's Opposition To Defendant1s Motion For Reduction Of Sentence

This is an electronic case record. Full case information cannot be made available either because of legal restrictions on access to case records found in Maryland rules 16-1001 through 16-1011, or because of the practical difficulties inherent in reducing a case record into an electronic format.

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0 [

!VOV·,•·

! ,

1

DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAl SER.VICES MARYLAND PAROLE COMMISSION

Order for Release on Parole

No. Ao2102<

WHEREAS, The Parole commission, by virtue of authority ronferred upon it by laws of the State of Maryland, does hereby grllnl parole to:

SIMMS HOWARP EARL Commitmenl Name tli!St. fir5!, Middle)

197429 DOC No.!PARIS No.

Who was convii;:ted of: 1) DAYTIMf 2) BURGl-AR.Y INTENT/STJ'AJJDAYTIME . 3) THEFT-LESS l:lOO VALUE
Court(s): ,l eALTco-cmcu1r COURT111J•CR.ooos
2) HOWARD COUNTY CIRCUIT-COURT #13k87017186 3) HOWARD COUNTY-CIRCUIT COURT#13Kll7017186

Date(s) Sen"'ncL'<l: 1103/11119BB

'

2) 011/2111969

3) OB/1:111989

Torm(s): 1)Yt\M00000
2) LIFE 3)YOOM18000

From'.

1) 08113n986 2)08/22M69 31 081211'989

Tracking Number(s):

10/GB/1945 D.D.B.

34245 SID#

D;;1le(s} of offense(s) oomrnltted <m or after May 1, 1991
THEREFORE the said commission do•s hereby older releas• on pamle of !he said offender frnm:
Maryland Corrnciioflal lnstitulion CorrBC1lona1 facility

INSTRUCTIONS TO THE PAROLEE
Upon release you shall be deemed to remain in legal custody until the expiration of your full, undiminished term of confinement Upon the alleged violation of any condiUon of parole you shall be remanded to the authority from Which paroled, Where a hearing shall be conducted by the Porole Co,mmission. If your parole is revoked, the Commission shall delerrnine the amount oflime spent on parole, ff any, which is lo be credited to your term of confinement.
You are subject to Iha special conditions of parole as sel lorth below, the standafd conditions of parole on'page 2 of this order and lo such further conditions as the Commission may impose at any time duli.ng the term of your

Special Conditions;

MPC-64

1110712007)

Page 1 Df 3

Attachment M

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Name: SIMMS KOWARO

Docl/:197419

1. Submil to. successfully

and pay any required costs 1or any and 11!1 eva!valions. lrtalment

.. t;y-lhe.Oivision.of Parole- and Probation, which m$y lnc1ude

abuse. mental health,

and <Qlhflr

Taite all medicatlons prwi;ribed by your treatmenl provider.

lesling, and aftercare as directed

pi:irfiln1lrlg.

violence,

3. Parmils agenl.s of the Division CJf .Darbie and Probation to visft your home a1 any time,

34. Comply as directed by your parolelprob&UOO with \tie Division of Parole and Prob3tion's .sexual offender management proi'JtarrJ, which

ma<J include fnlensNe rep!:>lting

speciafized sex offender treatment, elaatmnlc

ma.U\t:a6ofl, polygrapn l.estlng, and

romputer monilorlfl9.

35. Comply with 3ny oorfew or sile

imposed by J'-OllT parole/probation agenl to limit

cenaln aieas of !he community

arid/or 10 reQuire you IC obtain patmissio11 ta leave your residence during cerii:lln hows. Coope.iata wi\h prcgrarn which is established lo

rncnUll'.lr your compHance with these res1ric1ions, whici\ may

payment !or costs a$S.ocialed wilh Global Podtioning Systems {GPS} or other

tracking. technology,

·

38. Provide a DNA sample as tequireCI bY

39. A.ppeo(ln courl when notified lo do so.

40. Waive .an

lights proeas.ses, and agree to to thB State- of Maryland when instrucled.

41. Do rtot

01 vatbally thfeatt1n or lnJlmklate- any employ.ea of the Departmenl of Public: Safety and

Services.

Ollier: AGENT TO SUBh<lT OUARTf;RlYRB'ORT TO MARYlAND PAROLE COMMISSION.

Home Plan BRIDGE PARK HEA\,TH CARf NVRSNG Employment Plan

4017 llBERTY HEIGHTS AVENUE, BAI JIMOBE MO 21200

410 542 5306 Phone

Company Narne iWd Contact Per.;011

Address

Phone

Upon release you shall repon, in person, no later than 10:00 A.M., on 0912512015 to the Division of Parole and Probation office localed at 2100 Guilford Avenue Baltimore. MD 21218.
Telephone No. 443.263-3706

Commissioner ·

Dale

111Q7/2007)

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N•rn•: $1MM$ HOWARD EAR,L Doc#:197429

CONDITIONS OF PAROLE.

t Report as directed to and follow your Parole Agent's Instructions.

2 Worl< regufany.

3. Get permiss10n before; a Changing your home;
b. Changing your jot>; or c. Leaving the Stale of Marylahd.

4. Obey all laws.

5. Notify your Parole Agent

if you are

.

'6. You shall not ill1l9ally posses, use, or sell any narcotic drug, 'controlled dangerous substance". or

related paraphernalia.

·

7. You shell nof own, possess, use. sell, or have under your control any dangerous weapon or firearms
of any description withoul approval of the Parole Commission.

8. You sholl "'lnduct yourself as not to present a danger to yourself or others.

9. Special conditions; See page 1 of this agreement

NOTE; Conditions 10 and 11 apply to parolees Whose tenn qt confinement resulted from a crime or crimes committed on
or aftor May 1, 1991.

10. You mu$t pay a monthly supervision lee as requhw by law unless the Parole Commission exempts

you wholly or

!i'om payment of \he fee_

11. If ornered by tlie .Perole Commission to u1lO'll\JO drug or alcoMI abuse testing, you musl pay for the resting If required to do oo by the Division of Parole and Proba\ion.

-have hl!<l read to me, the fotegolng condttions of parole and any special conditions. I fully on<Jerstand them

of granting of perole to obse!V€ and abide by such

of parole. Further. I hereby waive

exir.>dition to the slate of Maryland and expressly agree that I wrn not contest any effort to return to tho State of Maryland

in consequence of my violating and of lhe tmrns and conditions of this parole_

Witness

Date 3

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-----,

EXEC1JTIVE ORDER
Ot01.20t2.07

Conditional Commutation of Sentenc.e - Tamara Se.ttles

WHEREAS,

Tamara Bottles (D!vislo:ll ofConwtlon

Number 904563),

CoX\ditlona! Grantee, was convitte.d.ofFelony Murder on Aprill l, 1985,

in the·Circuit·Coutt of Maryland.for J'l'.ince George's Coimty (Ci:tse No.

CTS4-n&9A) 1111d seoterwed to life im)l!isonrnent;

WHEREAS,

'I]lete ls .no ·evidence fuat T;in1ara

was the shooter m:. possessed a

wetjpon, ilnd. Settles has. served 27 years in pr.l£on while the shooter

served only nine years andJrns been in the commuuit;t for 19 years;

WHEREAS,

Ta.mirra Seffies h'!S rimtle s'1lttlficant

jnca;roorated -

overoowjng dJ.11& addiction, c<'lropleting 12 years of therapy at Patuxent

Xt>.stitution, tecefvlrtg ill\ A:ssociate'.s Degree, wo*ing toward a

Bachelor's Degj'ee "1Morgan State Univ.ersity, working· for Maryl811d

Comootionitl Enterprises

rt;Yi<>ws, and serving as a

voiw1teer we:ntor fur qtber

at.th<' Matyland Correctional lnstitut.e

for Women;

WHEREAS,

The Prinoe Gmrge's County State1s Attorney's Oftfoe does not oppose

clemency for

and

.

The Mory.Jand Pa;oh; Collll)lissi.on has C<lnGluded that Tamar• Settles to ·constitllte no IJ:u;eat tq public safe\y and recommends
'l:lle grimting ofExeciitlve C!emenc:y. ·

T!'IEREFDRE, f, MARTIN O'MAf..LEY, GOVERNOR OF THE STATE OF

MARYLAND, RAVING THOU GITT PROPER 1f.IB CONDlTIONAL

0RANTING OF CLEMENCY IN THIS CASE AND UNDER THE

AIJTHORITYVESIBD fr! MB BY ARUCLE II, SECTlON 20 OF
IBll C.ONSTITUTION OF MARYLAND AND SECTION 7-601 OF

TBE CORRECTIONAL SERVICES AR'l'IC.LE OF THE

ANNOTATED CODE OF MARYLAND, DO HE]'tEBY ORDER

TBA:T Ulill ORlGINAL SEN'XENC)': OF TAMARA SBTILES TO

"!1m

OF '.l'BE DNISION OF' COERECTION BE AND.

Attachment N

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p 013

HEREBY IS CONDl'J,l!DNALLY COMMUTED AND ·

CONDll10NALLY:JUlMlTTED TO LIFE WITH ALL BlJT FORTY

i.

Yl;:AR$ SUSPENDED SUBJECT TO TIIB l'OLLOWINO:

!

Pte-releaso·Condilloll!!·

A. Prior to any release qn pa,role or mandatocy supervision, \be
Maryfal!d Patole CommissiOll, in consultation with. the Depa).i:menl ofPublic St\fety and Correptiol)al Services, shall d"1(1se. a reentry pli>n, wllli;h at a minimum, include:

(1) . One

and.services through 1he Tum

About)lroilfam with Alternative Directions, !nc. IfAltprnl)tlve

Dir.eoiions cannot provide<resldency or services, the Parole

Commission and.the Department of Public Safety ll.rld

Cotte.otlonal $el'vice• •hllll ·devise a substituw plan;

(2) An emp10yment.'plan tlrnt inol\ldes, as necessary, job place1!Ient, jab training, and/or edi.lmrliona! programs; and

(3/ if deemed Recessary by the Parole CommisSion, in

oonsii!lation w,itb. Pat):Qt.ent Ill!Jtitution and the Drug and• Alc0hol

Abuse Ad1I1l:t:itstration, 11

.abusi> or !Ilental heolfu

treal!nfmJ ¢va.Juation,an.d/qr program.

'B. The conditional gnmtee shall sub:mit to. tandoro drug testing as di•ecled by the P1µ..,Je Comroission.

c.. '.l')le P1'l'ole

fu)pose flll.Y o1;herpte-ri::Jease

.cpnditlqns th.at it uonsiders J)rqper.

'Post,release Conditions

JJ, Iftl!o MBJ:yl.!md P!Uole Cornnrlssion'detl:mrines ful11 tho

Conditi0nal Grantee merits plll'qle t.<;lease, \be Parole

C.omm.ission may ,11rant parale, and the conditional grantee sM.11

k

b,- die Depart;m.ent.ofl;'v.b)ic Safety and

Oop:ectiou"1 S.ervleas pursuant to Title 7, Subtitles 3 and 4 of tile

Mi.de ofthe Annotated Co<;le of

¥;,rylond, subjectto all bfthe standard conditions ofparole and

lbe followfug· special conditions:

(l) ·Com11letion 0fone year ofresjd¢noy 1µ1Q. servllll's
:rn,., or ilrroush Turn A.bout Program with Altema:tive Directio!l$, ()(lmpleripn of· a

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I·
I
(2) Ifd.oomed. nec<0ssocy by tho. Parole ·Coirunission, submitto ameJ:1ta1 health evalnatlon and participate in roen(H] hea11h 1reatment·pro!lianuning di@cted by her
·

(S} Submit to drug testing.as directed by her supervising

(4) If4eei:n¢ necessary by the Parole Commission, peytioipate in subJrtruice abuse lt<lafment rmgr.inimlng "" dlrected by her supervising .agent; ·and

{5) ·Any other special conditions· that the Parole ComroiJ;sion considers propei:,

E. Ifthe Conditional Grantee iii released'on mandatory

super'iision, upon release from custody, she shall be

1)7 the Departµlent ofPublic

and Correctional Services

p\ll'ouant. to Title 7,

5 of the O;i:rectlo)la\ Serv'icPS Article

iJf tbe Annotated Code .ofMaryl<rod,

to all the s(ll)ldatd

eonaitions ofnlandatory'snpe>:'lision anll !h\l'follbwing special

conditions:

·

.(})' C0mpletio.n ofone year-ofresldeni;y imd services thro!lgb 1he Turn AbOut.Progrnm with Altell);iitive Directions, luc., or completion ofasubstitute plan;

(i)· I{deemed }lecessary by !he Parole Commission, sµbmi! IX> a.;n\lJltallrealth evah.l.ation a,n;! pa.rticipate b;t montal health J:reati:nent prOgrl11\1ming as .directed by ber supm:vi.si,ng
agent;

(3). 'Submit to d>iig testing ll8 directod by her

snpetvising agent;

·

(4) !£ deemed necessary by the Farole· Commission,

p.arlicipate il! substance·abuse treatment prognmmting M directed

h¥ bet

agent;.1l!Id

.(5) Any other special

·Qomtniss\on .coll'lidets

.

that the Parole

.F. 'The1'!!role .Commissien·shaTl fiot;g!''lll.l an.abatement of supervision imder C0do ofMaryland Regulations Section i2.08,0l.21B y1h(le tho Oon(\)tional Grl'\Ilt•e is on· parole or mandal<)ry Anpervis.i.on.

3.

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I'
'•

0. Revocation ofParole Qr.Mandatory Supervlsion·cmd Re·

ofQottimuteii S<mtenpe: Ifl,he Parole Comnrissio)l

detennlries 1:1¥;1 the Conditional Grantee violated a

of

parole or. mandatory ffilpervifilon under Soetions D or E of!.his

Conditlol\lll Commutation, butthe Conditional Commmon bas

·not been revoked under· Sectiou X, the Parple Commission may

;revoke parole or mandatqzy supervis).qn purs\lfl1lt to .tb.e
·proced\ltes outlined. ro 'title 1 of the Cmrection"1 Services

,Article.of the Annotated Code of Maeyland Md Code of

MaryltllldRegnlations Section 12,08.01.22. The Parole

Co:nimission may di;ny the ·eonditiorutl'Grl!l1tee credit for time

served onparo)e or mand,atozy s11pervisibll. Notwithstandil)g any

other provision ofla:w, the Parole Commissitm may also, within

its dlscretion, revoke .any or all ofthe Conditional

ditiilnution credits whether the Canelitional Grautee was released

on porole or.w!)lldator:y s>;pervisi.an.

H. Fol!oWlug coropllllion of her

of 40 years:

(1) The eonditlonal Grantee mull\ sub.rnit to continued

superylslon by the Parole Co!IlII\lsslqn for \)le remaindei of her 5usp!l1l,<;led li:fctil)'.)e tey!1l the Parole

;i
'

·oet=ines,-that the abate.merit of suc'.b: SUpe1vlsion is Jn th!' best

interest. of1he State l!l)d !hatfurther supervision is not necessary

for the protection .ofpublfo safe1y. Exwpt as otherwise provided

in tliis Conditional Cllmmutation,-tbis supmisiol). shall be

<;>m;iciwited acco1·ctlng \o 'the

aud prari0dures

slJPervisian ofpar6lees Jlllder .COde of M'.myland

'Regufo!ionsSertion 12.08.el.21.

(2)· The Cont'\ition.al Grantee mU.";t, wh<;ther or. not sµpervision is abated> contln\le lo al.>itle ,by tb.e following condi\iops for '\he. temaindm: of her suspe>nded lifetime term:

· R..;pmt as directed to filld follow her parole

agent"s ins(ructj011s.µp.less the P!!role ()9mmJssi@ has granted mt

aba}e)llent

·

(b) Obey.all laws;

(c) .Notlfy't11e'Parole Commission before
ohang\ngjobs,. cbw.gil)g h\>I' homo, or leaviµgtho State of
Mi>rylilll.d. The ))•!'Ole Commission has the autkority to.waive
nelifioo!i'.on requkem.ents; .

4

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(d) narcotic dl1il!. paraphernalia;

Do not illegally use, ,possess, or sell any dangerous substance," or related

'(o) Do not own, posses>,' IJ!i<>. sell, or hive

Mnj:rpl .of any

weapon Qr fuefJflll of any ilescri.ption

witho11\ the '\pproval ofthe Parole Con:unission;

(f) Notify the P;uole Com.mission im:ooedlately

if

and

(g) filly special conditions th!l! the Parole Co=lsslon oonside.rs proper.

Reyboatfon

l. .Rev9cail.on Qfthe Conditional Commuiation and Re·
imposittrm,of'Original Life Sontenqe:. Under the following circumstances, the Plm>le Coromissi0:t1m:ay, folloW!ng.ahearill.g, reoommend .to the Gowomor that the Conditiqnal Co=utatlon be revo)ced and "the Cqnditi<1nal Gnintee's orlglna:I life.sentence be ren;npose4..if.a majori,fy of.the co.mmissiopers C\eterrrrine th!l! the Oondili®•l Grantee po®S a 1hreat tppublio·safety and,
the to.tality af'lhe .circumstances, that revocation is
wananted:

{l) The; Conditional Grantee is convicted (}fa crime;

.(2) T.he Conditional Grantee owns, possesses, 1JSOS, sells or-has 1J)lder her control a firearm;

{3) The Co11ditio11al Grantee, while incarceroted, is

found guilty .of.an innmte rule violation listed ln :Code of Maryland

Regµlatiinm Section JZ,02.27.04B{1)i(4). or (6) or idonnd,guilty

of:i:norethm one:imn•te ntle violation in Code of Maryland

RegulatLons

or

{4) The· Conditional Grantee vicrlates a o.ondltlo.n under Se.ctions :0, E, or.Hof.this Conditional ColWliliitation;

r..

'.Paro)e Cm:i;illlis!llon Sll"Oll notify tile Oovemqr in

wn'ting of!\ ,rwolnll\en®tion \o revo)\e this Conditloual

Coniintita;ion under 'S01;tion I, and !tre Govemvr may ded\ie to

accept or·rejectthe 'I'aro.'le Gom:mission'·s reooIDJ1l<lIJdatlon.

5

- --- ---1

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GiV$1i

My Hnnd !llld file

Se.el of fuJo State of

Jy[afyland in ihe.City o£Ann,apolis, 1hfa 29"' day·ofMatch,

ZOJ:2.

ATTEST:

JUL-OJ-2016 THUCa0s8:e201:A1M6-cv-01021-ELH Document 23-3 Filed 07/08/16 Page 63 of 78 P. 023/031

WED 03:27 PM Mn PAROLE COMMISSION

FAX No. 4103585504

p. 005

DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES

Order for Release on Parole

No. A011s4!l

WHEREAS. The P;irole Commission, by virtue of authority conferred upoh It by laws of !he State of Maryland, does hereby grant parole to:

sETTlES TAMARA L Commitmeni Narne (Last FlJSl, Middla)

WhO was convio!ed of: 1]01 FELONYMUllDER
2) 02 USE HANDGUN

·Cour!(s): 1) 175PGC..CIR CHCT841289A 2) 175 P<>C-CIR CT iie'r841289A

Da!e(s) Seotenced; 1) 2) 06121/1985

lerm(s): 1)YOllOMOODOOD 2)Y012M0obOOO

F'rom: 1) 0311311965

:i)

03/13/1985

Tracl<iog Nu)1lber(s);

904563 OOC No./PARIS No.

01I07/1il5S

727340 SID#

03/13/20ZS Maximllm Expiration Dale

Date(s) of otr.nse{s) committed on or after May 1, 1991

THEREFORE the said commission doos hereby ortier release on parole of the said offender from:

'

•,

Corrections! !nstihrtion fur Women Corr<acUonaJ fucility

INSTRUCTIONS TO THE PAROLEE

Upon mlease you shall be deemed to
Upon tile allB!Jed violation of any

In custody until the expirmion of yourfull, undiminished term of confinement of Patti le you shall be remanded to the authm1(y ftom which paroled, where 0 hearing

shall be conducied by the Parole Commission. If your parole Is rovoked, the Commission shall derermins lhe amount of time

speni on parule, if any, which is to be creditad to your tllrm of COhTinemenl

are subject to the special Gonditionsclparole a> set forth below, 1he standard cbndition'? of p;irole on page 2 of this order and to such further wnditions the Commiosion may impose al any time during the term of your P,,role.

· Specla! Conditions:
1_Submit to, suocessfully complete, and pay any reqLiiraO. costs for any and al! evaluations, treatmarrt programs, testing, by the DMsion of Parole filld Probation, which me.y inclucle .F;iubst:incs abuse1 mental heall:h1 anger management
other issues. TakQ all mBdications prescribed by your treatment provider.

afteroare es directed vloJeni:e,

MPC--04[Revised11/07/2007)

Page 1 of 3

Attachment 0

---,

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JUL-25-2012 WED 03:27 PM

Mr 0AROLE COMMISSION

l"l!<llllr;;. Ul-.1 I L-L..V

L

FAX No.
LIV\tl/,..,......,...,....,

p. DOB

3. Petmils agent of !he Division of Parole and Probation to Visit your honie any iima.
34. Comply as l;lirededby:your parolefprobalian agentVJith tha Division of Parole Qhd 'Probation's sexual off:sJ'ldQr management progtarn, which
tn21.y include intensive roporlin9 requirements, specializ.ed sex offender treatment, elecitl:in\o mllllil:oring, medication, polygraph testing, and compu!\Jrmonitnrln9.

36. Complywilh MY oiJt'feW or''' raslriclions impossd by your p!ll1lle/pmbation a,gantto limit )'Our access ilJ t:B!iain """'"oftho community

ondlor to

you lo obtain permission to leave your residence dwing certain hours, Co1porate with any program which le ""1ahlished ilJ

monitor your compliance with lhese IBStriciions, which may indude payment for oos1s a!Soola!ed with Global Positioo"1y Systems {Gf'S) or other

tracking technology.

·

38_ Provide a DNA sample BS YOllUirod by law.

APP""' in court wheh nofmod lo do""-
40. WalV& "11 ro;iradilion righil; and processes, and agree to rs(um to the St.It ol Maryland when inslrucred. 41 Po not h <ic<llly otverbally1hree\On or intimidate any employee of tho Dapartmen! of Pull\lo Saiaty and CorrectlMal SelVf

Olher. I, Martin O'M,ney, Govemot of the st.i. of Maryl.,;d, having tl\oUglrt pmperthe ronditional grantinij of cleinorn:y in fhls case and under the authortty vested In me J;iy Mole II, Seciion 20 of the Consii\lllion ol MD ond Secilon 7-601 of Ille Correol!Ol10I SaOJie® Arficie of1heAnnotatea coos of Maryland, do iwreby ordar that the origmel sentencs ofT•maf'! Setil"" to the custody afDOC be and hereby Is condifionElly commuted
and ooodltlon;illy mmrtfed to Life wllh arr but 411 years suspended subjact to 1h• falloWing;

tf tt1e Mmyland-Parole Commission t:lelErmines thatthe corid\tit.mel Grantee merlls parole m!ease, -the Pai'Ole. Comtnltsion mey grant parole, and

the Grantee shoU be supervised by the DPSCS, subject to all atandEITTI oonditions of parole and the

spedal conditions:

1} Complete one yaarof

of the TAP Progr.<im or: ho.Using and employment

2) Mental Healll1 Tmalment ifneeded-evaluation

3) SUbmit to drug t"ijng as direcred by Agent

4) Sltb!l\ono• abu$01roatrnoll\ mandalmy

Home Plan
MARIAN HOUSE JR,ANStflON HOUSE
Name and RB!zlionship
Employment Plan

949 GDRSUCfj AVENU6 BALTIMORE MD 21218 Address

410 467 0675

Company Name and Cof\130!

Address

f>hone

Upon release you shall report, in person, no la!Br than 10:00 A.M., on ff//27/2012 to the Division of Parole and Pmbaflon office

located at2100

BaltJrimlll, MD 21218.

l

·-

07/2612012

Pag•2of 3

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JUL-25-2012 WED 03:28 PM

Mr 0AROLE COMMISSION il.o...v ''""'""',..

FAX No. 4rn·1535504

p, 007

CONDITIONS OF PAROLE.

1. Report as directed 1o and follow your Parole Agenfs lnstr\ictions.

2. Work rEJJularly.

3. Get permission befora:
a. Changing your home:
b. Changing your job; or
c. Leaving the Stale of Maryland.

4, Obey all laws.

5, NoUfy your Ptitule Agent immediately ifyou arsarrested.

6. You shall not illegally posses, use, or $Bil any narcotic drug, related paraphernalia.

dangerou$ substance', or

7. You shall not own, possess, use, sell, or have uhderyour control any dangerous
of any desoriptan \\llimut approval of the Parole Commission.

orftreanns

8. You shall conduct yuurself as not to prBSeni a dangvr lo yourself or ofhers.

9, Speolal cond!Born;; See page 1 oflhis agreement..

NOTE: Conditions 10 and 11 apply io paroleeli whose term of confinement resulted from a crime or crimes committed on 1,

1Q, You pay a monlhly supervision fee iis requir6'1 by law unless tlie Parol9 Commission exempis you whQlly or par11y from payment of fhe fee.

11. Jfordered'by the Parole Commission to undergo drug oralcohol abuse testing, you must pay fOrthe testing if mquirad

b the Division of Parole <md Probatlon.

.

_

orMve had teod to me, fhe foregoing oondltions of parole and any spgclal conditions. I fqjly understand them
?J1 g , In consideration of granting Of parole 10 observe and abide by swh ccmdiaons of parole. Further, I heraby wa!ve
extradition to the $\<l\e of Mpiyland and expressly agree that I will not contest any ,effort lo return to lhe State of Maryland
in cor,sequence of my violating and ol the terms and condttlons of this parole,

MPC-64(Revised1i/07/2ll07)

Date.
Dale
Page3of :J

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'

i

WHEREAS, '·

410-974-2077

LEGAL COUNClL

1llRCJ..i(,,,. ___...
O?xccuttbc lhpartmc nt

BXECU'l1VB ORDER

01.0l.Z004,69

(Al'neo.dt

()J;dor 01.01.2004.66)

p, 00 6

. i

P."1llllr.!

I

, I I '

'0iM!tlonal CommutlllioJl ¢"Se11t•M; • Wal!!ll' HtmrY Arvifi&et

Walier l;lenzy A.rvlnger, Conditionlll Cll'antec, wi:S

of Fll!t

Murder on Dee!:mb•r 4, 1969, in the Criminal Court fur l3e.lttmoro

Cityi

Walter ll'.enry Arvlnger wu. fQJlowlng ltl• CQl?vlolion trn: Sl!id orlme, · Serttll!'lced to life !!l:lprisol)!)lonlj

Walter Henry

while lncatoomted, bllll heen an tXl)IJ.l.pli!y

hll!late, He ))as cl)Jn!lllad !Ill imptess(ve record ¢€work cxperlonoe ml

. i; '

!neliMIOlla.\ proposs; •

The Macyland brol1 C-Ol!lml$0'!Q11 hu concluded that Walt"'

Al:vinier pre$ently

to cob$tltute 11Q tlireat to Ille safi»y of society,

and recommends the gmntit1g of

o1e.menoy;

. .

'

WI!EREAs.

1')11>

of the cfMazyland &id i>fthe Conditloll.81 Clnmtee will

,' :·,

best be srirvod by tlMi gi:aniing oh condition•! commuti;t!on ofienl0!lee Ill

Wo!tot '.acnry

111W

.

'!'

VIHEMAS,

· lt i& llPJlrOprlate to iWl'""d &'.eoutlve Otdor aLO J..2004.66 to emJUl'I> that

conditional

will be sup11rvi$1•d UJIOn re!eaae.

'

NOW 1\ID!a.EroRE, !, ROBERT L, llBRLlCR, JR., OOV.EilNOR OF TJm STATE OF

.. .

'.MAA'ILAND, HAVlNG ni:oumr.r PROPER Tlffi BXTilNSlON Oll

•·i' ;

THE AlJ'Jll'OlllTY VESTI\D IN ME BY Tm>

. '

CONSTITll'rrON Afl)) 'l'.ai UWS OF MA:R111.ANJ:>, PO HErulllY

OROiR TliA'.l' THE ORIGINAJ:. SEN'.!'lIN'Cll OF W;U,TS lGNRY

AI<.VJNGER. TO Ta:B CUSTOPY OF Tall Dtv!SION OF

COAAECT10N BE ANn XS HEtREBY CONDITIONALI..Y

I

COMMU1l!P TO LIFE WITH ALL BUT FORTY-FM! YEARS

1, i

SUSPllNPEP, SUBJECT TO THE FOU.OWlNG:

I.

'.1' I

··!' ::

UPON P.ELW!l

CiJSTOPY, THli CONDITIONAL

GMNTBE SHALL :Sli $0l'm<.V!SED B1" '1'Im lJIVISION OF

l'AR.OLE ANP PROBATION Af:J THOUGH ON MANDATORY

STJPERV!$!0?-<PUMUAN'l' TO rnJ..i:t 7, SUBS)!O')'ION 5 OF THE

COR.RiCI'!ONAL Sliltt\llCBS ARTICLE, ANN'OTATBil CODE OF

MAAYLAN.D, SUBJECT 'rO ALL THB STANDA\W CONDITIONS

Attachment P

Case 1:16-cv-01021-ELH Document 23-3 Filed 07/08/16 Page 67 of 78

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::ii' !

!:):' l ' I

I

410-974-2077

I Ii ' '
'1,1'' '

" '1 i ',
!I':,_.,;

LEGAL COUNCIL.

p, 00 l

PAGE

i

02/1!:2

I

I '

, I

LI'' I
i
"I iI i ·

r .

OJ:! MAN.DA't'ORY SUPllRVISXON, A.!W ALSO su.erncr TO rgn

FOLLOWING Sl'BCTAL

,

The Conditlonll

sholl auend lll'lfllll!ment maggos lln4

I
I
' !

<11·. I.
! I; .

: '·, ''. :

l!ie11tal helllth tharapy/coun&elln11

and participate in a SQoi&I worll

progtfllli, AS DllU!CTED BY HJ.$ Stll'J!.RVTS!NG AO:flm.

'': i 'I ! ·

, 'I\;.

!!I'"

.

'

·. 1 ·

! i':' /'I ; ,'

i I

AJ"I'E&?::

-..--

I 'i •
I'
I

R.. Kllrl Awnann\

I·

Secretary of State

i

j'
I:.
! ;.
!' .
II •
.,I
I
I
I
;l
I

'.i
I,. • i
,I.,I
,,.
I
TOTAL P,32

JUL-Ol-2016 THUC0a8s:2e11:A1M6-cv-01021-ELH Document 23-3 Filed 07/08/16 Page 68 of 78 P.026/031

07:42A

P.02

_, CONDITIONS Or-MANDATORY SUPERVl&JN RE;:LEASE

w A/ &\ r-f e,,-

s- 2 ;/) 9 c,,,-. 4f l {I {7 '

Report as directed to and. foll.6w your P\lrole Agent's ins uc1tions.

Work Regularly.

/*10-1 eI /ltJt"."7 · ·

fJ / 7 fC tJ ,

-1-<·'1 c/,·:1/1 <

C+pli /Pff:j7 '> I"';<?.

tiJ 2 l /)0 U . /'

3.

' ' () I 3 I ,,,.,,/ Get
I a.

permission before: fo
,/,)()'_
Changing your home;

/

;2.
;.I.(.),
I

.
t

r_ . J1

'1lJ'1V'M-, t-17. I_. ;,<

/L{J,<,,; f
/,J

/

.( 1
J j(,
-
)

f
.> tA _1_ /

.

I "40.
,

v1 I ,·//h/;l·/') .

/-i/c.
6 ') ( ') / ,
"' """

b. Changing your job; o;* L/!O- S l/)..- 711/ 1 i'/o- 3 3 3 - 0;(? O

c_ Leaving the state_of
Xu/.4.!IJU· .. f 4. Obey a111awsy

·

f'-•cd-c t_, ld j,,

'[it4-1fJt

1e.;J!Yr-f
1 {- :; o-.

0

01 Lf

h

/OrJ;,-t'/o,:-.
1t, ,. dl

5. Notify your Parole Agent 1ffi8diately if you arearrested. c!,li:/t <'ff,

6. You shall not illegally possess, use .or sell or have under your control any narcotic drug, "controlled dangerous suqstance", or related paraphernalia.

7. You shall not own, possess, use, sell, or have under your control any dangerous
weapon or firearms of any description without approval of the Maryland Parole Commission. ·

8. You shall so condl.lCI yourself as not to present a danger to yourself or others.

9. Special conditions: See front of this cettificate

NOTE:

·conditions 10 and 11 apply to mandatory SL1pervision releasees
Whose term of confinement resulted from a crime or crimes committed on or after May 1, 1991.

10. You must pay a monthly supervision fee as required by law unless the Maryland Parole Commission exempts you ·either wholly or partly from payment of the fee.

11, If ordered by the Maryland Parole Commission to undergo drug or alcohol abuse
testing, you must pay for the testing if required to do so by Division of Parole and
Probation.

Page2 of 2
Attachment Q

Case 1:16-cv-01021-ELH Document 23-3 Filed 07/08/16 Page 69 of 78

APR-14-2016 THU 08 31 AM ' ' .' '' ' '. . '•,,:

.. ,..

p, 00 8

----
<!Extcutibt J;epartmtnt

EXECUTNE CLEMENCY

WHEREAS,

CONDITIONAL COMMUTATION OF SENTENCE
no. CHARLES DAVIS (Division of Correction irunate 6762),
Conditional Grantee, was convicted of murder in the Criminal Court for Baltimore City, case number 3820, and, on December 6, 1960, he was sentenced to life imprisomnent;

WHEREAS,

CHARLES DAVIS bas been an exemplary irunate for twenty-fou.r years. He has compiled an impressive record of work experieuce, participation in alcohol treatment programs, mid institutional progress;

WHEREAS,

The Marylaud Paw le Commission he.s concluded that CHARLES DAVIS presently appears to constitute no threat to the safety of society, and recommends the granti.ng of executive clemency; and

WHEREAS,

The interests of the State of Maryland and of the Conditio:ual Grantee
will best be served by the granting of a cooditional commutation of
sentence to CHARLES.DAVIS;

NOW, THEREFORE,

I, ROBERT L. EHRLICH, JR., GOVERNOR OF THE STATE OF
MARYLAND, having thought proper tli.e extension of clemency under the authority vested in me by the Constitution and laws of Maryland, do hereby order that the life sentence imposed in Criminal Court for Baltimore City Case Ni1mber 3820 upon CHAALES DAVIS to the custody of tbe Division of Correction be and it hereby is conditionally i;ommuted to a fixed term of sixty-five years subject to the following:

A. ·Ifthe Maryland Parole Conmussion dete.n:nines that the Conditional Grantee merits parole release, prior to parole releaae, the· Maryland Parole Commission, the Division of Correction, a Psych9logist, and the Drug and Alcohol Abuse Ad.ministration shall evaluate the Conditional Grantee to devfoe a reentry plan, which shall set forth special conditions of release, and cooi:dinate witl1 community" ba;;ed drug, alcohol, and mental health treatment providers to secure . treatment servfoes as required after release;

B. The Conditional Grantee must agree to participate in <>aid drug, alcohol, and/or mental health treatment services a.s required upon release and the service providers must be able to treat the Conditional Grantee immediately;

Attachment R

Case 1:16-cv-01021-ELH Document 23-3 Filed 07/08/16 Page 70 of 78

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p, 009

C. Prior to any parole release, the Conditional Grantee must obtain a written offer of, at minimum, part-time employment and an affidavit from the employer must be Bubmitted to the Maryland Parole Commission promising to employ the Conditional Grantee once he is releaood from the Division of Correction; ·
D. If the Maryland Parole Conunission d<:>temilnes that the Conditional Grantee merits parole rnleai:e, and the other conditions set forth above are satisfied, the .petitioner must complete one h11ndred hours of community service with the Maryland Department of Juvenile
Services and/or an organization approved by the Maryland Parole
Commission in the five years inunediately following bis release from the Division of Correction;
E. Iftho Maxyhmd Parole Commission detennines that the Conditional Grantee nierits parole release, the Conditional Grantee must obey all laws while on parole; if the Conditional Grantee is convicted of a crime aft<:>r November 25, 2005, the new conviction is a violation of this conditional connnutationof sentence and the
Governor will revoke this conditional conunutation of sentence after a
hearing to be conducted by a commissioner of the Maryland Parole Commission; and
F. Xfre!eased by mandatory supervision, upon release from custody, the Conditional Grantee shall be supervised by the Divisiou of Parole and Probation as tho11gh on mandatory supervision pursuant to Title 7, Subsection 5 of the Correctional Services Article of the Annotated Code of Maryland, subject to all the standard conditions of mandatory supervision. ·
GIVEN UNDER MY HAND AND TB:E GREAT SEAL OF THE STATE OF MARYLAND, in-the City of Annapolis, this 2s01 Day of November, 2005.
Gov em or
ATTEST:
etary of State

JUL-OJ-2016 THUCa08s:e211:A1M6-cv-01021-ELH Document 23-3 Filed 07/08/16 Page 71 of 78 p 027/031

MSJ:< 06/08/06

P,04

...,

46162

MARYLAND PAROLE COMMISSION
t>RDE;R fOR RELJ':AS£ O:N PAROLE

WHERE4S1 the Parole.

bt:.{l::by gr.1111H

t\l.!

b}'

at

OlA\<LES DAVIS

Commitrnctd N:une

1) MURDER lS'.I: IJEQ\EE 2) ESCAPE·

wh1;1

1.'.ll-D:kfftd urou it by tlii: b1WJ 1;1rthc Stde ofM:i.ry1:lt1d,. lloi::i

fi,762 llOCIPARIS Nu.

OOB 05/21/1939 OOH

Cuurlc

= llAl::rm.JRE

C!RCUI! CllUJlJ' - 1) \1{13820

ANNE ARUNDtL OOUITTY CIRCUIT .CDURJ' - 2) i/16201 3) #23505

1) 12/06/60

2) 04/15/75

3)

1) 65 YEAl\5

2) 1 YEAR

3) 3 WJ\S

From:
THEREFORE,

l) lZ/05/60 2) IDNSEGUTIVE 3) OlNsECUTil/E
said Cumroi5!:!ill.Mii doa: h!!t'Bby order t'Jtt niksus·c on pmrole o! 01;t; ;s;iid 11U"1:•ukr Crom:
MAAYLMO llWSE OF CIJRRECTIONS
12/06/2025

011 uc :after May l, 1991_ _ _ _ _ _

1N'STlWCl'J01'!S TO J'lJE .PAROLEE

bt dttQ'ldi to _remain lti; ltglll O::llS!ody

lbe «pln.ltion of your run,

Item of

Upo:u

or any q>ndi.ifoll. oFr:u:olc ,Y(IU

tu

which pnh;)lo:d,

wlu:.ri:'l bqrJng SM.ii 00 (:Onduclal by tbe Pnn.tl!!.

If fotll"' tJ*ro)_t: LI Tl:''l'olu:d1

DF timr. tpcn1

i.t>hich ls to be ..:.ttrlited y1,1ul" b::rm ar

t:'.mn:n,fs;sl:on Sh;'I}) di:krmin-c lht:

You 5:llb:i1?.d tu thl:" :!'peCJJ1.I

ot r;ia.role A$ stl fllo.h bdtn•r1 tne 11J1.nlhrd co:o.iliti.Dn.:r or

page :1 'Of dti.! oriltt

iJ.S thi: O>mmi!;!jiom i:G»}'

-.t nn1 timi: dtiring tln:: h:nn. )(l)lf"pllroJt-

'JD aJMPORT WI1ll 1\lE GOVERNOR'S 00!1MUNTATION ORDER AND SUBSJQUENl' A.D-A-11.. EYAWA'.tXON, WE: WillJ 'IO APO 1HE FOll.OIJING ffil:IDITIOOS:

1) MUST NOT C:ONSIJME /\LCOHOL

2) SUBMI'f 11) llAN1lW BREATH REPORT liOR llLO'.JOOL ABUSE

ms 3) A'lUl'ill ALCO!lOLIC' S

.MEEI'mGS AT LEAST ONCE EVERY Dl0(2)

tJEEKS AND PROVlDE PROOt OF A1TINllAllGE 11J PAl\OLE AGEN.r

_

ROSA l!M'\LIN(SLSTER) 4001 W- ROGERS AVN:JtiE,

MD., 21<15

l'"llin:
(410) 357-l.4"5 E) HlJ,IELL & HOIJELL, 2502 wroIA s6iJTiJWAY, BAL'fiMJRE,MD., 21215

(t)NfACT: lC"RL Hcm:u_. (443) 527-5632

Upon rt:lf:ll.ft:1 .JO"

ttpD-rf. ll.1 pt-r.s.on, .11,0

th:l.n 10;1.ll) B.m, llJl th!! next

Wiy, ta th.I! Oivjslnn Of ,l'llrok .1.Ddi

PNlJ,_._lll.toAOffi 1 · ._, 1 2100 j;DILWRD A\lll1\JE, liALTIIDRE, MD., 21218

·

(443) 263--3500

Tdqihuac nv. - - - - - - - -

cJ(. /(._ o--=

JUNE "9, 2006

. .....,:.

WHITE. :r.i:o.t(dM • PINX- lr';iiro!,; C"r.m'"li1•ioi:i

YELLOW

Ot:nkr <;.1>1'"f. tll-l.1£.-

C'-un

?-ll'0-14

2/0D)

Attachment S

JUL-07-2016 THUCa0s8e:211:1A6M-cv-01021-ELH Document 23-3 Filed 07/08/16 Page 72 of 78 p, 028/031

JUN-08-2005 15:SB

MARYLAND PAROLE COMM

P.05

-2-

OJNTU'IUA'D:ON TO ADDENDUM;

4) MUST CilMPl.E):E 100 HOURS OF CXJMMUNI'IY SERVICE WITH THI.<; MARYLAND DEPARTMENT OF JlJVfl'II)'.,E SERVXGES AND/OR AN ORGANIZATION APPROVED
BY THE MARYLA.i\/D PARD1E 0Jl1MISSION IN 1HE FJVE(S) YEARS 1Mt1EDIATELY
fOLLOWING HIS RELEASE F'ROM MARYLAND OOC (MAY FULFlU. THROUG!J: PRESENTATION TO AU,XIHOlJDRUG RECOVERY GROUPS SUCH: AS TilE GAlJDFNZIA PROGRAM IN HIS NEIGHBORliOOD).

JUL-07-2016 THUC0a8se211:A1M6-cv-01021-ELH Document 23-3 Filed 07/08/16 Page 73 of 78 p, 029/031

.,,: /'
i
1.- , "'Report

.
to and follow yqilr Parole Agent's iust:ructions.. ·

2. Work-regularly.

, 3. · Get pcrmission before:

a. .Changin.g your home;

b. Changing your jOb; OJ.'

-c. Leaving the State of Maryland..

4. Obey all laws.

5.

Notify your Parole Agent iimuediately ifyoa are arrested.

6. You shall not illegally possess, use, or sell any narcotic diug, "controlled dangerous substance",.or related paraphernalia.

7. You shall not own, possess, use, sell, or have under your control any dangerous weapon or firearms of any
description withoutapproval oftheParole Conll:il.ission.

8.

You shall so conduct yourself as not to present a danger to yourself or others.

9. Special conditions: See page 1 ofthis agreement.

'

'

'

'

NOTE: Conditions 10 and 11 apply to parolees whose term of confinement resulted from a crime or crimes

committed on or after May 1, 1991.

10. You must pay a monthly superviBion fee as required by law unless the Parole Conun:ission exempts you wholly · or partly from payment of the fee.

11. ff ordered by the Parole Commission t0 undel.'go drug or <llcohol abuse testing, you must pay for the testing if · ·

.

to do 'SO by the Division of Parole and Probation.

I have read, or have had read to me, the foregoing conditions of parole and any .special conditions imposed 'on

page l of this agreement. I fully understand them and I agree, in consideration of granting of parole, to observe and

abide )Jy such conditions of parole. Further,.I hereby waive extrailiti1:m to the State of Maryland and expressly agree

thai: I will not contest any effort to return to the State·ofMaryland in consequence of my violating any of the terms

am}conditions of this parole.

·

""X

._,

/ (_._.f ' • .

''

· Signature o:fP!jrolee

·'--..

.. z..'. ·9

,

&r/r.6 ·

"· Witness

(---·'\.,_.. 4_,.z.___..,..-:...;.'" ,.; .

MPC· 15 (Revised 11/99) ·
WHITE. Parolee • PINK - Parolo Commission Copy • YELLOW - Institution Copy • BLUE - Certified Copy· • GREEN - Court Copy

Case 1:16-cv-01021-ELH Document 23-3 Filed 07/08/16 Page 74 of 78

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16:31 410-971-2677

LEGAL OOUNOXL

PAGE 07/08

WHEREAS,

WHEREAS,

WHEREAS,

WHEREAS '

'

WHEREAS, WHEREAS,

B'.XECtiTlV;B ORDER
01.0)..1005,01

Conditiomil Coulttlutatim:i ofSontence • Charles Torrell

Si·.

Charles l"eu:oll Waltora, Sr. (Divfaion of Corrcctiou irn;nato no. tn-871 ),

crime Conditional Grantee, was aonviotod ofm.urd&, rohbecy wltb. • deadly
weapon, assault, and of a handgun in !he oommiS$lOll of a of

violenco il1 the Circuit Court for Ga.tret1 County, oase number 1304, aJJ.d on

February Z5, 1977, ho WaB so:ntonced to lifo for t'he murder oonvlcti.on, ten

years concurrent for tb.e

with a deadly won;pon charge, five )'flat'!

oonourrent for issauJt, pluo five years oonsecutive for the h;mdgun violation,

beglnningo!lMa.roh 16, 1975;

Charles TerroJJWa.Jters; Sr. was oonv:i.oted of robbery in the Circuit

Court fbl'Montgomezy County, c3'1e number

on Septorobet 23, 1975,

and was sentonced to ten yelll'S ocnseoutivo to t]).e senJence bo was then

serving, which was the life

On August l?., 2002, in.Circuit Cowl {C\t Wwirington County, niu:nber 3693A, formerly Circilit Court for Garrett CO\lutr, case number 1304, !ho Honornblc John ;Fl:a.nldllll McDowellofthe Cmmit Court for WilShington County resentencod th• Conditi0ll!ll. Q:rantoe to llfo With all but forty.five years Sl'IJlpO!lded for felony mnrder, yo•i:• ooncurrori! l.ilr assault, :Ind five
years consecutive for uso 0£ a handgun ill a crimo of violellce;

Chades Torrell

Sr. was not the trigg=•n in the murder O!!Bo;

Charles Tcm:ell Walters, Sr., while incmveratsd, nas been m

inmate. He has compiled""' i.mpi:essivo rocord ofpractical instnlCLio1\ wait

expecie:o.oe,and institutional progi:eas;

·

The Maryland Parole Comxilisaion Pill' concluded the.I

Tette11

Walters, Sr. presently appear;s to ponstilllto 110 threat to tho a21foty of society,

and rocommenda granli\\g of executive ol,,moncy;

'.Th• victim's family ln the munlor oase was

and supports il1.e·

comm\ltati())l of tho ColJ.ditlonal Grantee's sC!llterice; and ·

The inte,.sts ofthe Sta)_o ofMaryland iu:ld of the Conditio)'lill Gr.antet: will best b• served by the granting ofa oonditimial connnutatiort ofseuteuce to · Charles Terrell WeJt.,,.., Sr.

Attachment T

Case 1:16-cv-01021-ELH Document 23-3 Filed 07/08/16 Page 75 of 78

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02/.25/2005 15: 31 410-974-2077

LEGAL COUNCIL

PAGE ea1es

NOW TIIBRfil'O:RE, I, ROBERT L. EHRLICH, .JR,. GOVERNOR OF TEE STATE OF

MARYLAND, HAV1NG THOUGHT PROPER THE EXTENSION OF

CLEMENCY UNDER TEE At!TBORJTY VESTED ITT ME EY mE

CONSTJJUTWN AND THE LAWS OF MARYLAND, DO HEREBY

ORDER THAT Tim LIFE SENTENCE WITH ALL BUT 45 YEARS

SUSP:ENDED l'.MPOSED IN CIRCUIT COURT FOR WASHT.NCJTON

COUNTY CASE NUMBER 3693A UPON CHARLES TERRELL

WALTERS, Sll.-, AS WJ;'.LL AS TBB TEN·YEAR CONS:BCUI'IVE

SENTENCE IN ClRCUIT COUR'l' FOR MO'NTOOMERY COUNTY

CASE NUMBER

TO 'I'.f:IE CUS'l'ODY OF !Bl! DIVISION OF

CORREC'l'!ON BE AND THEY HEREBY ARE CONDITIONALLY
COMMUTED TO A FlXlID TERM OF FIFTY YEA.l<S SUBJECT TO Ul:E

FOLLOWING:

A. Prior to MY parole that b• granted, 1he Conditional Grontoo com;p1ete eighteen months ofwork raloase1 ns Gpe:i;i.fieil by the .l:>ivision of Commtion, while observing gQod behavior;

B, Lt tho Maryland Parolo Ca=issioo· dotlll'lninea that the

Qrontee merits parole release aftor tho cow:tition soi forth <lbove is satisfied,

prior to parole xeJease, the Maryland Parole Commission, the Division of

Correction, a State Psychologist, anti !he Drug aud Alcohol Abuse

A&ninistration shall waluato Iha Conditional Grantee to devfao a reentry

plan, wlricb shall sot fo;rt);). special conditions ofrelease, and ooonlinste with

aomrriunity.hased dn1g, alooho1, au.d monlal health tre&1mr;nt

to

$Mure treatment services as required atter release; an.d

·

m C. Tho Conditional Grantee must agree to participate $1l.ld drug,

. alcolml, and/or morrtal ho.Ith !i:elit\ti.ent

as required upon

and .

. 1he servioo providers mllSf be able to treat Co.nditional Grantee

immediately,

GJV):lN Uhder My Hand and the Gtoat Seal oftho State ofMeryJll\ld,

in the Clty

this2S"' Pay'ofFebnu1:ry, 2005. .

2

,JUL-07-2016 THUC0a8s:e211:A1M6-cv-01021-ELH Document 23-3

16'2.6

MARYU=\NP PAROLE COMM IO(Zlfl)Q

Filed 07/08/16 Page 76 of 78 p, 030/031

P.06

T
1'<11.

'_4_7_3_0_7_·J-(;J

MARYLAND PAROLE COMMISSION

OJW;ER l"Oll

ON !'All.OLE

WB:ElU?.AS, tbe grant parole to:
Commttmer.it Nai:ne

by vimlc of the authority coofernd llPort it h)' tile laws or t11e Sf:aU Df ·

do01;

DOC/B No.

00!}• 12/16/1947

(1) Felony - ; U s e of lloadgun in Coomission of a l'elooy who wai;: eonvXctro of: _.(_2..,)_Afined-'-''----RO__bb_er,y__ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

Comt From:

(1) Wasb:i.Tigtoo County Circuit Corn:t #3693A

(2)

County Chari.t CoUrlo 1160l3

(1) 06/11/1975 (2) 09/22/1975

(1) 45 years; 05 years (2) 05 y-s .
(1) 03/16/1975; Consecuti'l'e (2) Consecutive frcm 03/16/2020

· {Corru.tiomtl F a c i ) ·
l'•role E"Pit>li.,, ll>l<o -"-93;:,_/_i_G_:../ _ __

Date(s) Qf

committed oo ()'rafter May 1,

INSTRUCTIONS '.fO THE PAROLEE

UpQn rd.We, you shall be

t'>

In legal t;w;i:Ddy unta tM cxpirntion of y()'l)r

confinement.. U{Wll tb1; 1.'1.llEged vfolaiion of any 4!11ndhion or

YQU b(! rtmati.ded;t.o the

whel:l}:p bllllring iilmJ.1 h1;1 conducted by- tbe

Coro11;1ilssion. If Y<lbr pnrolc is n:vok'ild) the

ot tuP.c 11f1?1t 011 Pf!COle, H' .m:1yj which i:i W 'lie: rrediU:d to your kl,'ll,1 t>f

undiminished

(I(

which paroled.,

$h$11

f.be

art mih,ici::t to th!:! !ipeciS.l conUiiiQ'"' oCpal'OJe as set forth bdmv, lbf: stnndurd ccn;iditi(1JJ.5 of I;llUVle ot:i page 2 of this ordi::r
- and 1;1nch 1.\1.rtbel' condJt:i.On$ as the Commission .may bnpDs€! .nt any time dµMng U..e (em of YQUl"

llomeornlEmploymen!Plnn: JJ!NNIFER WAI.mS (,n""') 11416 lloodview Pr., llagerst<iwn, mil 21742. Ill!,: (240) 291-6523 - (301) 791-8995

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.11 /02/2006
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• L1'rtiriM Copy • GREEN • Ci>uft Qipy

TITTot

Attachment U

JUL-01-2016 THU C0a8s:2e21:A1M6-cv-01021-ELH Document 23-3 Filed 07/08/16 Page 77 of 78 p, 031/031

!'

I

CONDITIONS OF PAROLE

/

I. Report as directed to and follow your Parole Agent's instructions.

2. Work regularly.

3. ·Get permission before;

a. Changing you, home;

b. Changing your job; or

c_ Leaving the State of Maryland.

4. Obey all laws.

5. Notify your Parole Agent inu.ilediately if you·are arrested.

6. You shall not illegally possess, use, w sell any narcotic drug, "controlled dangerous substance," o:r related paraphernalia.

7. You shall not own, possess, use, sell, or have un:der your contrOl any dangerolis weapcin or firearms of any description without approval of the Parole Commission.

8. You shall so conduct yourself as not to present a danger to yourself oi:: others.

9. Special conditions: See page 1 of this agreement. ·

NOTE: Conditiom; 10 and 11 apply to parolees whose t = of confinement resulted from a crime or crimes committed on or after May 1, 1991.

10. · You must pay a monthly supe:rvision fee as required by law unless the Parole Commission exempts you wholly or piu:tly from payment of the fee.

. 11. ll' ord=d by· the Parole Colllmission to undergo drug or alcohol abuse testing, you must pay for the testing if required to do so by the Division of Parole and Probation.

.

have had read to me, the fo<egoing conditions of parole and any special conditions imposed on

page 1 of this agreement. I fully understand them and I agree, in consideration of granting of parole, to observe

an.d <Wide by such conditions of parole. Further, I he<eby waive extradition to the State of Maryland a:n.d

expressly agree that I will not contest any effort to return me to the State of Maryland in

of my

violating any of the terms and conditions of this paroje.

/33'?7/

of Parolee
ii g olp

Date, )

._,

Witness

MPC-15 (Revised 11/99) ·
WHITE-Parolee • l'JNK-Parole Co""1Jission Copy ; Ylll.-LOWJnsrltntion C0py • JlLUE-Certified Copy • GREEN·Court Coi>Y

Case 1:16-cv-01021-ELH Document 23-3 Filed 07/08/16 Page 78 of 78
12.08.01.17 & .18 Parole Cornn1ission Proposal Draft Dated: June 14, 2016 Page I of I

Title 12 DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES

Subtitle 08 PAROLE COMMISSION

Chapter 01 General Regulations

Authority: Concctional Services Article, §7-207, Annotated Code of Maryland

.17 Preparation for Parole Consideration.

A. - B. (text unchanged)

C. Notice to Inmate and Access to Files.

(I) (4) (text unchanged)

(5) Review of Parole Co1111nission file.

(a) The institutional parole agent and the inmate or fhisJ the inmate's representative shall review the file at the

appointed tin1e. [Psychological reports, psychiatric reports, and other infonnation which is considered privileged shall

be re1noved from the file and the institutional parole agent shall orally give a short sun1mary of the contents where

appropriate.)

(b) [Recommendations of classification counsellors, work sheets, and other work products of Con1missioncrs

and hearing exan1iners are hereby declared privileged.] Except as provided in Correctional Services Article, _1:;'7-

303(b)(1)(ii), Annotated Code o.f Maryland, the in1nate or the in111ate 's representative may, on request, exantine a

docu1nent that the Conunission or flearing Exan1iner uses in detennining whether the inmate is suitable/Or parole.

(c) Suhject to the provisions

Service Article, § 7-303(b)(2}, Annotated Code

any

documents submitted by a Fictin1 or the victi1n 's designated representative shall be availablefOr review by the inmate

or the inn1ate 's representative except when prohibited by Correctional Services Article, §7-303(b)(I )(ii), Annotated

Code OfMiriyldi1d.

(d) {f'a risk assessntent prepared}Or the Con1nJfssion contains diagnostic opinions, that assessment ntay not he

avaifablefOr examination,

a sumrnary that does not contain the diagnostic opinions may be prepared and rnade

available, upon request, to the inmate or the inmate's representative.

(6) (text unchanged)

.18 Consideration for Parole.

A. General.

(2) (text unchanged)

(3) In addition to the factors contained under §'§A(l) (2) o,/'this regulation, the Cotnn1ission conside!'S the

jOllowingfGctors in determining whether a prisoner who committed a crime as a juvenile is suitable for release on

parole:

(a) Age at the time the crime was comn1irred;

(h) The individual's level of'maturi(v and sense responsihili(v at the tin1e <?f'the crin1e was committed;

(c) Whether

or pressure.ffom other individu(lls contributed to the commission a.(the crin1e;

(d) Whether the prisoner's character developed since the time q(the crime in a n1anner that indicates the

prisoner wi/! cornply with the conditions ofrelease;

(e) The hon1e environment andj(uni!y relationships at the time the crin1e 1vas con11nitted;

(f} The individual's educational background and achievement at the ti1ne the crime was con1n1itted; and

(g) Other.factors or circumstances unique to prisoners who co1n111itred crhnes at the tin1e the individual was a

juvenile that the Commissioner detennines io be relevant,

((3)) (4) To make these determinations the Commission examines:

(a) The offendcr1s prior criminal and juvenile record and [his) the offender's response to prior incarceration,

parole or probation, or both;

(b) The offender's behavior and adjustn1ent and [hisJ the offender's participation in institutional and

pro grains;

(c) - (I) (text unchanged)

B. - I. (text unchanged)

Stephen T. Moyer

Secretary

Attachment V

Case 1:16-cv-01021-ELH Document 23-4 Filed 07/08/16 Page 1 of 3

Executive Directive

Title:
Case Management

Executive Directive Number:
OPS.100.0004

Related MD Statute/Regulations: COMAR 12.02.2 Related ACA Standards: N/A
·Related MCCS Standards: NIA

Supersedes: EmD.OPS.100.0004 dated June 24. 1015
,
Executive Director, Field Sunnort Services Effective Date:
June 2, 2016 Number of Pa2es: 3

Secretary .01 Purpose.

Deputy Secretary for Operations

updates existing case management policy and procedures for final appointing authority for the Division ofCorrection(Division) case management-actions and adds languagerelatedtoarrinmateserving a life sentence.

.02 Scope.

applies to Division of Correction employees and !Q_inmates sentenced and committed to the custody of the Commissioner of Correction.

.03 Policy.

The Division of Correction shall establish the final appointing authority for Division case management actions .

.04 Definitions.

A. In this directive, the following term has the meaning indicated.

B. Term Defined.

(I) "Assistant Commissioner" means the Assistant Commissioner for the Division of Correction.
GD "Commissioner" means, the Commissioner of the Division of Correction.

.05 Responsibility.

A. The Commissioner designates the Assistant Commissioner, Executive Director of Field Support Services, and the Deputy Director of Field Support Services as the final appointing authority for the following Division case management actions:

(i!) Those listed in the Case Management Manual, §5 .F;

EXHIBIT
I f2

Case 1:16-cv-01021-ELH Document 23-4 Filed 07/08/16 Page 2 of 3
Executive Directive Number: OPS. 100.0004
(]2) A Security Reduction Profiles that requires headguarters review; and
(f) Placing an inmate in a local detention center for re-entry programming.
B. The following action shall be added to list of actions in the Case Management Manual, §5 - Inmate Assignments, paragraph F - Commissioner's Review that require review by the Commissioner, or a designee:
A decrease from medium security status to a lesser security status for an inmate serving a life sentence for an offense committed by the inmate while the inmate was a juvenile and the inmate is recommended by the Maryland Parole Commission for outside testing or work release.
C. The Case Management Manual, §7 - Security Classification, paragraph D(2) under Sentences of Life or Death for reducing security classification is amended to read:
An inmate serving a life sentence or has a detainer for a life sentence in another jurisdiction shall be classified to no less than maximum security unless approved by the Commissioner, or a designee.
D. The following action shall be added to list of considerations in the Case Management Manual, §7 Security Classification,paragraph···o=·sentences ofLifeorDeathforreducingsecmfitycl:tssificafioh:
An inmate serving a life sentence for an offense that the inmate committed while the inmate was a juvenile shall be eligible for a reduction below medium or minimum securitv status when recommended by the Maryland Parole Commission for outside testing or work release and the Commissioner, or a designee, shall approve a recommendation for minimum or pre-release security status .
.06 Attachments/Links.
There are no attachments or links to this directive.
.07 History.
A This directive replaces EmD.OPS. l 00.0004 dated June 24, 2015:
(1) Clarifying the final appointing authority for reentry placements of inmates who are sentenced and committed to the custody of the Commissioner of Correction; and
(2) Adding language proving additional considerations for security status changes related to inmates under a life or death sentence.
B. This directive supersedes provisions of any prior existing, Secretary, Department or unit communication with which it may be in conflict.
C. This language adds to and does not invalidate the current Case Management Manual and shall be included in the next revision of the Case Management Manual.
2

Case 1:16-cv-01021-ELH Document 23-4 Filed 07/08/16 Page 3 of 3
Executive Directive Number: OPS.100.0004 .08 Correctional Facility Distribution Code.
A
c
L
3

Case 1:16-cv-01021-ELH Document 23-5 Filed 07/08/16 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

MARYLAND RESTORATIVE

*

JUSTICE INITIATIVE, et al.,

Plaintiffs,

v.

*

GOVERNOR LARRY HOGAN, et al., *
Defendants.
*

Case No. I: 16-cv-O102 l -ELH

*

* * *

** ****

DECLARATION OF MARCI JONES

I. I, Marci Jones, am over 18 years of age and am competent to testify.

2. I am Administrative Aide at the Inmate Grievance Office (11IG011). I am a

custodian of the files and records of the IGO. The IGO reviews and processes grievances

filed by inmates confined in the Maryland Division of Correction ("DOC") or Patuxent

Institution ("Patuxent") or those otherwise in the custody of the Commissioner of

Correction.

3. I have conducted a search of the files maintained by the IGO and found no

grievances filed by Calvin McNeil #163182, Nathaniel Foster # 174966, or Kenneth

Tucker# 130850.

I solemnly affinn under the penalties of perjury and upon personal knowledge that

the contents of the foregoing declaration are true.

t"1

_.fuJ#_l_,_jO

(}_(!jlfl!J _ __ _

DATE v

MARCI JONES

I

EXHIBIT

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

MARYLAND RESTORATIVE JUSTICE INITIATIVE et al.,
Plaintiffs,
v.
GOVERNOR LARRY HOGAN et al., Defendants.

Civil Action No. ELH-16-1021

MEMORANDUM OPINION Plaintiffs Calvin McNeill, Nathaniel Foster, and Kenneth Tucker (collectively, the “Named Plaintiffs”), along with the Maryland Restorative Justice Initiative (“MRJI”), “a grassroots membership organization dedicated to prisoners’ rights,” have filed suit against several Maryland officials, challenging Maryland’s parole system as applied to individuals who received sentences of life imprisonment for offenses committed as juveniles (“Juvenile Offender” or “Juvenile Offenders”). ECF 1 (“Complaint”). See id. ¶¶ 13, 16. The Named Plaintiffs allege that although Maryland permits parole for a Juvenile Offender serving a life sentence, in practice the Maryland parole system, of which the Governor is a part, inflicts unconstitutional“de facto” sentences of life without parole. ECF 1 (“Complaint”), ¶¶ 11-12, 167-185. According to the Named Plaintiffs, they “have been and continue to be denied a meaningful opportunity for release,” in violation of the Eighth Amendment to the Constitution and Article 25 of the Maryland Declaration of Rights. Id. ¶ 1. Plaintiffs’ 61-page Complaint also includes a challenge on behalf of all Maryland“‘juvenile lifers’” (ECF 1, ¶ 1), a group of “more than 200 individuals,” including the Named Plaintiffs. Id. ¶ 78. Plaintiffs assert that, as applied to individuals serving life sentences for offenses committed

as minors, the Maryland parole system subjects them to “unconstitutionally disproportionate punishment.” Id. ¶ 12.
In support of their claims, plaintiffs rely on several recent decisions of the Supreme Court that bar, as unconstitutional, sentences of life without parole for Juvenile Offenders. These include Montgomery v. Louisiana, 577 U.S. ____, 136 S. Ct. 718, 734 (2016); Miller v. Alabama, 567 U.S. ____, 132 S. Ct. 2455, 2469 (2012); and Graham v. Florida, 560 U.S. 48, 82 (2010). Plaintiffs seek declaratory and injunctive relief, and a declaration that Md. Code § 7301(d)(4) of the Correctional Services Article and § 2-201(b) of the Criminal Law Article of the Maryland Code are unconstitutional. They also seek attorneys’ fees and costs. ECF 1 at 59-61.
Defendants are four Maryland officials associated with the Maryland parole system: Governor Larry Hogan; David Blumberg, Chair of the Maryland Parole Commission (“MPC”); Stephen Moyer, Secretary of the Maryland Department of Public Safety and Correctional Services; and Wayne Webb, Commissioner of the Maryland Division of Correction (“DOC”) (collectively, the“State”). Each defendant has been sued in his official capacity. See ECF 1 at 1-2.
Roberta Roper; Deborah Kempl and Jessica Fisher; and Patti Krogmann (“Individual Movants”), as“Crime Victim’s Representatives,” and the Maryland Crime Victims’ Resource Center, Inc. (“MCVRC”) (collectively, “Movants”), have filed a motion to intervene as defendants (ECF 9), supported by a memorandum (ECF 9-2) (collectively, “Motion” or “Motion to Intervene”). Individual Movants are family members of persons who were killed by Juvenile Offenders. See ECF 9-2, ¶¶ 1-3.1 MCVRC “is a private, non-profit organization [that seeks] to ensure that victims of crime receive justice and are treated with dignity and compassion by providing
1 The Individual Movants’loved ones were not killed by any of the Named Plaintiffs. - 2 -

comprehensive victims’ rights and services, including representing victims of crime and their lawful representatives.” Id. ¶ 4.
With their Motion, Movants also filed a proposed motion to dismiss plaintiffs’ Complaint (ECF 9-5); a supporting memorandum for the proposed motion (ECF 9-6); an appendix for the proposed motion (ECF 9-7); and a proposed answer (ECF 9-8).
Defendants filed a response to the Motion to Intervene (ECF 16, “State’s Response”), in which they ostensibly“take no position on the ultimate question whether the Court will exercise its discretion to permit intervention by the movants . . . .” Id. at 1. Plaintiffs have filed a response in opposition to the Motion (ECF 17,“Opposition”), and the Movants have filed a reply (ECF 18, “Reply”), supported by exhibits.
No hearing is necessary to resolve the Motion to Intervene. See Local Rule 105.6. For the reasons that follow, the Motion shall be denied. However, Movants shall be permitted to participate in this case as amici curiae.
I. Factual Background2 The Named Plaintiffs are adult inmates in Maryland correctional institutions. They are all serving life sentences for offenses they committed when they were juveniles. ECF 1, ¶¶ 1, 13.3 Calvin McNeill“was sentenced to life with parole under Maryland’s mandatory sentencing scheme for felony murder” (ECF 1, ¶ 122) for “his role in a fatal robbery of a dice game that
2 For the purposes of this Memorandum Opinion, it is unnecessary to review fully plaintiffs’ factual allegations.
3 To be clear, the Complaint states that all three individual plaintiffs were sentenced to “life in prison” (ECF 1, ¶¶ 122, 137) or “life imprisonment.” Id. ¶ 147. But, according to the Complaint, only McNeill and Tucker were expressly sentenced to life with parole. Id. ¶¶ 120, 136.
- 3 -

occurred in 1981, the day he turned 17 years old.” Id. ¶ 120. McNeill is now 51 years old. Id. ¶ 121. He has earned “an exceptional institutional record in the DOC” (id. ¶ 124), and has “taken advantage of every program available to him, earned positions of trust in employment, and taken leadership roles in programs to promote alternatives to violence within and outside DOC.” Id. ¶ 124. He was recommended for “commutation” in 2008, “[i]n recognition of this strong record . . . .” Id. ¶ 125. In 2011, “Governor O’Malley rejected this recommendation without explanation.” Id. ¶ 126. McNeill’s sixth parole hearing was scheduled for 2015 (id. ¶ 127) and, during that hearing, parole commissioners“told him they would be recommending him for a risk assessment.” Id. ¶ 128. As of the date of filing of the Complaint, McNeill had “not been transferred for the assessment.” Id.
Kenneth Tucker “was sentenced to life with parole in 1974 at age 17 under Maryland’s mandatory sentencing scheme . . . for participating in a robbery-murder with another teenager.” Id. ¶ 136. According to plaintiffs, in the commission of the robbery, “Mr. Tucker’s co-defendant killed the victim.” Id. And, “[b]ecause the case involved a homicide that occurred during the course of a robbery, Mr. Tucker was charged with felony murder and faced a mandatory penalty of life in prison.” Id. ¶ 137. Tucker has been incarcerated for 42 years. Id.
Plaintiffs maintain that Tucker“began turning his life around almost immediately upon his incarceration, earning his high school equivalency in 1975, an associate’s degree in 1989, and a bachelor’s degree in psychology in 1994.” Id. ¶ 139. Tucker has“obtained certification or training in several professions” and “is currently an observation aide in the prison hospital, where he provides consolation and coping strategies to terminally ill and mentally distressed peers.” Id. Tucker also belongs to the prison’s “Scholars program” and serves as a volunteer mentor. Id. Plaintiffs aver that as early at 1987, “case management recommended [Tucker’s] transfer to
- 4 -

preferred trailer housing and medium security because of his good institutional adjustment and infraction-free record . . . .” Id. ¶ 140. Tucker has received consistently positive reviews and participated in numerous parole hearings. Id. ¶¶ 140-142.
Tucker had his sixth parole hearing in 2014. Id. ¶ 143. “Commissioners who heard his case recommended that he progress to the next step, which is the risk assessment . . . .” Id. However,“[a]fter the evaluation was completed, the parole commission denied parole and set his next hearing for 2017.” Id. Plaintiffs contend that “[n]o additional information was provided about which aspects of the assessment caused concern nor what [Tucker] might do to demonstrate his readiness at his next parole hearing . . . .” Id.
In 1983, “Nathaniel Foster was involved in a botched robbery attempt along with his codefendant,” during which “the victim was killed.” Id. ¶ 146. He was seventeen years old at the time. Id. Because Foster’s case“involved a homicide that occurred during a robbery, Mr. Foster was charged with first-degree murder and subjected to a mandatory penalty of life imprisonment without adequate consideration of his youth status.” Id. ¶ 147. Foster has been incarcerated for 32 years. Id. ¶ 149.
While incarcerated, Foster has maintained “an exemplary institutional record” with “only two minor infractions in the last three decades” and no“infraction of any kind in the last 16 years . . . .” Id. ¶ 150. Foster has also “pursued his education” and has “held a number of jobs while incarcerated including working in the canteen and cooking for the Officer’s Dining Room.” Id. ¶ 152. Foster“has been entrusted with extraordinary responsibilities in these jobs”(id.), and has also “served as a volunteer helping to care for men who are gravely and terminally ill at the prison hospital.” Id. ¶ 153.
- 5 -

According to plaintiffs, Foster has had numerous parole hearings in the last twenty years, including in 1995, 2000, 2005, 2008, 2011, and 2013. Id. ¶ 155; see also id. ¶¶ 156-165 (detailing determinations made during each hearing). During the 2013 hearing, parole commissioners noted: “Offender presented well, has excellent job evaluations and mentors younger prisoners. After considering all factors, a rehear for 1/2015 is suitable given nature & circumstances of offense.” ECF 1, Complaint, ¶ 165 (internal quotations omitted). However, plaintiffs state that,“[a]t the beginning of 2015, disheartened by his sense of futility in the parole process as he was repeatedly recognized for having an excellent record but then denied release due to the offense itself, without regard for his juvenile status, Mr. Foster declined a parole hearing.” Id. Thereafter, during a 2016 parole hearing, Foster was “advised that he will be sent to Patuxent for a psychological evaluation.” Id.
Of relevance here, plaintiffs maintain that two provisions of Maryland law are unconstitutional: Md. Code (2012, 2015 Supp.), § 2-201(b) of the Criminal Law Article (“C.L.”) and Md. Code (2008 Repl. Vol., 2015 Supp.), § 7-301(d)(4) of the Correctional Services Article (“C.S.”). According to plaintiffs, C.L. § 2-201(b) is unconstitutional because“it mandates judges to impose life sentences without adequate consideration of youth status . . . resulting in grossly disproportionate punishment in violation of the Eighth Amendment and Article 25 of the Maryland Declaration of Rights.” ECF 1, ¶ 15. Further, they argue that under C.S. § 7-701(d)(4), “only the Governor may grant parole to any individual serving a life sentence.” Id. ¶ 60. They assert, inter alia, that the “Governor’s clemency authority” is unconstitutional because “it is exclusive and devoid of standards.” ECF 1 at 23. Elaborating, plaintiffs maintain that the Governor is not required to follow or consider parole recommendations made by the MPC (ECF 1, ¶ 72); is not guided by any factors, either statutory or regulatory, in granting or denying parole
- 6 -

(id. ¶ 73); and is not required to make public the “criteria” used in deciding whether to grant or deny parole. Id. ¶ 76. They observe that from 1995 to 2015, a period of two decades, Governors Glendening, Ehrlich, and O’Malley received recommendations for parole for 24 individuals, both juveniles and adults, and rejected every one, without explanation. ECF 1, ¶ 116. In that time, the governors never approved even one parole request. Id. ¶ 117.4
In addition, plaintiffs criticize the policies and practices implemented by the MPC. See id, ¶¶ 81-90. According to plaintiffs, the policies and practices “make no distinction between youth and adults, fail to adequately consider the attributes of youth, and in some respects disproportionately penalize those who were youth at the time of offense, all while fundamentally impeding individuals from vindicating their right to a meaningful opportunity for release.” Id. ¶ 82; see also id. ¶ 83-84. Further, plaintiffs maintain that the risk assessment tools used by the MPC to assess individuals impair their access to release because they “take no account of an individual’s maturation over time, accomplishments [or] institutional record,” but instead“penalize those who were youth upon arrival to [the DOC] by assessing them as they were when they were most risky and too young to have developed factors that the tools deem ‘protective’ against recidivism.” Id. ¶ 87 (alterations added). Similarly, plaintiffs complain that DOC policies prevent Juvenile Offenders from a meaningful and realistic opportunity for release by “bar[ring] lifers, including juveniles, from eligibility for work release and family leave programs” and by preventing them “from moving below medium security status regardless of the individual’s institutional record.” Id. ¶ 91.
4 In contrast, between 1969 and 1994, “181 lifers were paroled” by Governors Mandel, Hughes, and Schaefer. ECF 1, ¶ 118.
- 7 -

II. Standard of Review
Intervention is governed by Rule 24 of the Federal Rules of Civil Procedure. It provides,
in relevant part:
(a) INTERVENTION OF RIGHT. On timely motion, the court must permit anyone to intervene who:
(1) is given an unconditional right to intervene by a federal statute; or
(2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.
(b) PERMISSIVE INTERVENTION.
(1) In General. On timely motion, the court may permit anyone to intervene who:
(A) is given a conditional right to intervene by a federal statute; or
(B) has a claim or defense that shares with the main action a common question of law or fact.
(2) By a Government Officer or Agency. On timely motion, the court may permit a federal or state governmental officer or agency to intervene if a party’s claim or defense is based on:
(A) a statute or executive order administered by the officer or agency; or
(B) any regulation, order, requirement, or agreement issued or made under the statute or executive order.
(3) Delay or Prejudice. In exercising its discretion, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights.
The Individual Movants seek intervention under Fed. R. Civ. P. 24(a) and (b). The
MCVRC seeks intervention only under Rule 24(b).
- 8 -

A. Intervention of Right In Stuart v. Huff, 706 F.3d 345 (4th Cir. 2013), the Fourth Circuit explained the standard for intervention of right under Rule 24(a)(2). It said, id. at 349-50 (quoting Teague v. Bakker, 931 F.2d 259, 260-61 (4th Cir. 1991)): [A] district court must permit intervention as a matter of right if the movant can demonstrate “(1) an interest in the subject matter of the action; (2) that the protection of this interest would be impaired because of the action; and (3) that the applicant’s interest is not adequately represented by existing parties to the litigation.” In addition to the three factors listed in Stuart, “timeliness is [also] a ‘cardinal consideration’ of whether to permit intervention . . . .”5 Houston Gen. Ins. Co. v. Moore, 193 F.3d 838, 839 (4th Cir. 1999) (citation omitted). Under Rule 24(a)(2), once an intervenor has satisfied the three criteria for mandatory intervention, the burden of persuasion shifts such that intervention is mandatory,“unless the court is persuaded that the representation is in fact adequate.” 7C CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE § 1909, at 390 (3d ed. 2007, 2016 Supp.). In order to intervene as of right, a movant’s interest in the action must be “‘significantly protectable’” and a movant must “stand to gain or lose by the direct legal operation.” Teague, 931 F.2d at 261 (quoting Donaldson v. United States, 400 U.S. 517, 531 (1971)). Moreover, “[w]hen the party seeking intervention has the same ultimate objective as a party to the suit, a presumption arises that its interests are adequately represented, against which the [movant] must demonstrate adversity of interest, collusion, or nonfeasance.” Virginia v. Westinghouse Elec. Corp., 542 F.2d 214, 216 (4th Cir. 1976) (alteration added); see also Stuart, 706 F.3d at 350.
5 In my view, the Motion (ECF 9) was timely. It was filed less than two months after suit was initiated and before defendants filed responsive pleadings. Moreover, plaintiffs do not dispute the timeliness of the Motion. See Alt v. U.S. E.P.A., 758 F.3d 588, 591 (4th Cir. 2014).
- 9 -

Of relevance here, the Fourth Circuit has explained “that where the party who shares the intervenor’s objective is a government agency, the intervenor has the burden of making a strong showing of inadequacy.” Stuart, 706 F.3d at 350. This heightened showing is required because “when a statute comes under attack, it is difficult to conceive of an entity better situated to defend it than the government” and“to permit private persons and entities to intervene in the government’s defense of a statute upon only a nominal showing would greatly complicate the government’s job.” Id. at 351. For example, “the government could be compelled to modify its litigation strategy to suit the self-interested motivations of those who seek party status . . . .” Id.
Recognizing that statutes are passed “through the democratic process,” the Court observed that“‘the business of government could hardly be conducted if, in matters of litigation, individual citizens could . . . intervene and assert individual points of view.’” Id. (Citation omitted). Thus, the Fourth Circuit said that when the government agency and the would-be intervenor share the same objective, “the putative intervenor must mount a strong showing of inadequacy. To hold otherwise would place a severe and unnecessary burden on government agencies as they seek to fulfill their basic duty of representing the people in matters of public litigation.” Id. at 352.
B. Permissive Intervention Even if Rule 24(a)(2) does not mandate intervention, a party may be entitled to permissive intervention under Rule 24(b). See Stuart, 706 F.3d at 349. The decision to grant or deny permissive intervention “‘lies within the sound discretion of the trial court.’” Smith v. Pennington, 352 F.3d 884, 892 (4th Cir. 2003) (quoting Hill v. Western Elec. Co. Inc., 672 F.2d 381, 386 (4th Cir. 1982)); see also McHenry v. C.I.R., 677 F.3d 214, 219 (4th Cir. 2012). In Shanghai Meihao Elec., Inc. v. Leviton Mfg. Co., 223 F.R.D. 386 (D. Md. 2004), thenDistrict Judge Andre Davis distilled, from“the text of Rule 24(b) itself [and] case law interpreting
- 10 -

the rule,” four conditions for permissive intervention, id. at 387 (citations omitted; alterations added):
(1) that [the intervenor’s] motion is “timely”; (2) that its “claim or defense and the main action have a question of law or fact in common” . . . ; (3) that there exists an independent ground of subject matter jurisdiction; and, (4) that “intervention will [not] unduly delay or prejudice the adjudication of the rights of the original parties.” The Fourth Circuit in Stuart discussed the challenges that accompany the addition of parties to an action, noting:“Additional parties can complicate routine scheduling orders, prolong and increase the burdens of discovery and motion practice, thwart settlement, and delay trial.” Stuart, 706 F.3d at 350. The Court observed: “This is particularly so where . . . the proposed intervenors are themselves differently situated entities.” Id. In Stuart, the plaintiffs lodged a constitutional challenge to a North Carolina abortionrelated statute, which required compliance with certain informed consent procedures before an abortion. “[A] group of pro-life medical professionals, women who have previously undergone abortions, and pregnancy counseling centers” sought to intervene as defendants, pursuant to Fed. R. Civ. P. 24(a) and (b). The district court denied their motion, and the Fourth Circuit affirmed. Id. at 347. The Fourth Circuit stated: “‘Adding three groups of intervenors would necessarily complicate the discovery process and consume additional resources of the court and the parties.’” Id. at 354 (quotations omitted). That logic would apply here, as discussed below.
- 11 -

III. Discussion
A. Intervention as of Right The Individual Movants seek to intervene as defendants as of right. See ECF 9-2, ¶ 5.6
They contend that they have a stake in this action based on several provisions of law that provide
rights to victims of crime and their representatives. ECF 9-2 at 6-7. Individual Movants cite,
inter alia, Article 47 of the Maryland Declaration of Rights; C.S. §§ 7-801(b) and 7-805(b); Md.
Code (2008 Repl. Vol., 2015 Supp.), §§ 11-403(e) and 11-503 of the Criminal Procedure Article (“C.P.”); and the federal Crime Victims’ Rights Act (the“CVRA”), 18 U.S.C. § 3771.7 According to
the Individual Movants, these provisions, and others, demonstrate “their state and federal statutory
rights to be notified and to participate in any criminal justice related parole, pardon, or judicial sentencing proceedings filed by the convicted state defendant(s) who injured them . . . .” ECF 9-2, ¶
6. They argue that these “statutory and indefeasible victims’ rights under Maryland law will be
lost without intervention”(id.), and that denial of intervention“will fatally impair and impede . . .
[their] ability to protect their legal interests.” Id. at 9.
In addition, the Individual Movants maintain that the State does “not adequately represent
[their] interests . . . .” Id. They argue, inter alia, “that in the past the Office of the Attorney
General has not always asserted and protected victim’s [sic] rights when its own interest diverged
. . . .” Id. at 12. To support this contention, they cite several instances in which the State opposed 6 Defendants assert in their Motion that Individual Movants have relied on both Fed. R.
Civ. P. 24(a)(1) and (a)(2). See ECF 16 at 2. However, as Individual Movants highlight in the Reply, they seek intervention as of right only under Rule 24(a)(2). ECF 18 at 2; see also ECF 92, ¶ 5. Therefore, I need not address Rule 24(a)(1).
7 The CVRA, 18 U.S.C. § 3771, grants victims, inter alia, the right to timely notice of any public court proceeding or parole proceeding (§ 3771(a)(2)); in general, the right to attend court proceedings (§ 3771(a)(3)); the right to be heard (§ 3771(a)(4)); as well as “the right to proceedings free from unreasonable delay” (§ 3771(a)(7)) and“the right to be treated with fairness and with respect for the victim’s dignity and privacy.” Id. § 3771(a)(8).
- 12 -

the position of a victim or a victim’s representative, or in which the State conceded error and agreed to new sentences. ECF 9-2 at 13.8 Individual Movants argue that such cases make it clear that the State “has already determined to come down on the side of [sentence] review in favor of the inmate plaintiffs, rather than the . . . finality . . . favored by the victims.” (Quotations omitted).
In the State’s Response, defendants assert that they“take no position”on Movants’ request to intervene as of right. ECF 16 at 1. Nevertheless, the State’s submission suggests that it does not see any ground for intervention.
The State points out that no Maryland or federal statute provides a basis for the Individual Movants to intervene, and that the statutes on which Movants rely“primarily pertain to criminal proceedings.” Id. at 2. Defendants also posit that Individual Movants do not meet the Fourth Circuit’s “demanding standard” for intervention of right because they “share ‘the same ultimate objective as the existing defendants.’” Id. at 3 (citing Stuart, 706 F.3d at 351-52). In the State’s view, “[t]he movants cannot overcome the presumption of adequate representation merely by pointing to instances where the Office of the Attorney General has exercised its constitutional and statutory authority.” ECF 16 at 5, ¶ 7.
The State also expresses concern that the Individual Movants misunderstand the Attorney General’s“responsibilities as the State’s legal officer.” ECF 16 at 4. They explain that the State’s Attorney General“‘is first and foremost the lawyer of the State.’” Id. at 4 (citation omitted). In that
8 Individual Movants cite, e.g., Tunstall v. Shearin, DKC-13-1781, a habeas action, in which the State conceded error and agreed to a resentencing; Lindsey v. State, 218 Md. App. 512, 98 A.3d 340 (2014) (including State’s opposition to a victim’s claim for restitution), rev’d, Griffin v. State, 444 Md. 278, 119 A.3d 753 (2015); Lopez-Sanchez v. State, 388 Md. 214, 879 A.2d 695 (2005) (including State’s opposition to victim’s claim for direct appeal); and Cianos v. State, 338 Md. 406, 659 A.2d 291 (1995) (including State’s opposition to appeal filed by victim representatives). See ECF 9-2 at 10, 12, 13.
- 13 -

role, the Attorney General has many constitutional and statutory duties, including, in criminal cases, “a responsibility to seek justice” and “the responsibility for determining whether to proceed with a criminal appeal or other post-conviction matter.” ECF 16 at 4, ¶ 6.
Plaintiffs oppose the Motion to Intervene. ECF 17. They maintain that Individual Movants do not have a“significantly protectable interest” to be heard or notified because“this case involves neither their rights nor any other victim’s rights to be heard . . . .” Id. at 8. According to plaintiffs, the statutes that Individual Movants cite (see ECF 9-2, ¶ 6) do“not grant crime victims rights of intervention as parties, even in proceedings pertaining to the underlying criminal case of offenders who have wronged them.” ECF 17 at 8 (citing Griffin v. Lindsey, 444 Md. 278, 281, 119 A.3d 753, 754 (2015); Lopez-Sanchez v. State, 388 Md. 214, 224, 879 A.2d 695, 701 (2005)).9 Plaintiffs also point out that Individual Movants are not the victims or the victims’ representatives for individuals wronged by the Named Plaintiffs. Id.
Additionally, plaintiffs assert that the Individual Movants do not have an interest that will be impeded or impaired upon resolution of this case because the“case is about whether Maryland is compliant with the Eighth Amendment jurisprudence of the U.S. Supreme Court, not the sentence or parole of particular individuals.” ECF 17 at 9. Further, they contend that “this case does not concern any victim’s ability to assert the statutory rights Movants cite,” and argue that even if plaintiffs prevail in this case, the victims retain their rights, such as to notice and to be heard. Id. (emphasis in original). Plaintiffs also claim that the Individual Movants do not meet the “standard required to rebut the presumption that the state will adequately defend the constitutionality of its policies.” ECF 17 at 10.
9 The parties incorrectly cite the second case as“Lopez-Sanchez v. State, 338 Md. 214, 225 (2005).” See, e.g., ECF 17 at 8; ECF 18 at 15 (emphasis added).
- 14 -

In their Reply (ECF 18), Movants take issue with both the State’s Response and plaintiffs’ Opposition. As to the State’s Response, Movants assert:“Defending the lawsuit is not the same as adequately representing the interests of the Individual Movants, with whom the State has neither spoken nor even notified about the case.” ECF 18 at 3.10 In their view, this “is precisely why crime victims have a state constitutional right to protect their interests and prevent the agents of the State from interfering with their rights.” Id. Noting that the State has not contradicted the Individual Movants’ claim that the State’s position is sometimes adverse to that of crime victims, Individual Movants argue that they“have met their burden to show the inadequacy of the State to protect their separate state constitutional, and federal and state statutorily protected interests.” Id.
Further, the Individual Movants complain that “it is inconsistent for the [plaintiffs]. . . to seek relief that affects more than the three named individual Plaintiffs, but then to argue . . . that the Individual Movants do not have an interest because they are not the victim’s representatives of the three named Plaintiffs.” ECF 18 at 11. They also argue that, even if the Individual Movants did not lose loved ones due to the crimes of the Named Plaintiffs, the Individual Movants have an interest in this case because MRJI has filed suit on behalf of all “individuals serving life sentences who were juveniles at the time of their offenses . . . .”Id. at 11. Therefore, Movants contend this group may include a Juvenile Offender who harmed one of the Individual Movants. Id.
For the reasons that follow, I conclude that there is no basis for intervention as of right.
10 Individual Movants are not victims’ representatives as to the Named Plaintiffs. Moreover, at this early stage of the case, it seems unreasonable to expect the State to have notified the victims’ representatives as to some 200 Juvenile Offenders, especially given that the litigation, even if successful from plaintiffs’ perspective, will not necessarily result in the reduction of sentences or parole.
- 15 -

The Movants have no statutory right to intervene under the provisions of law on which they rely. The various laws cited by Movants—including Article 47 of the Maryland Declaration of Rights; C.S. §§ 7-801(b) and 7-805(b); C.P. §§ 11-403(e) and 11-503; and the CVRA, 18 U.S.C. § 3771—confer on crime victims or their representatives the rights, inter alia, to notice and to be heard at criminal proceedings. But, these provisions do not confer party status on victims or create a legal interest that permits intervention in civil matters. See, e.g., Brandt v. Gooding, 636 F.3d 124, 137 (4th Cir. 2011) (noting, for example, that the CVRA “makes no reference to intervention” and does not grant a victim the right to intervene); Griffin, 444 Md. at 281, 119 A.3d at 754 (“In Maryland, a victim is not a party to a criminal prosecution.”) (citations omitted); LopezSanchez, 388 Md. at 224, 879 A.2d at 701 (“The non-party status of a crime victim has been a central precept of Maryland criminal jurisprudence ever since public prosecution became the sole method of enforcing this State’s criminal law.”).
Moreover, the Individual Movants do not“stand to gain or lose [their rights] by the direct legal operation” of this case, so as to deprive them of a“significantly protectable” interest. Teague, 931 F.2d at 261 (quoting Donaldson, 400 U.S. at 531). As plaintiffs point out (ECF 17 at 9), even if the plaintiffs prevail, the Individual Movants will not lose their existing rights to be notified or heard in cases “involving the person who wronged them directly.” See ECF 17 at 9. Because Individual Movants will not be deprived of any rights in this case, they have not demonstrated a “significantly protectable” interest, as required for intervention of right. Stuart, 706 F.3d at 350.
Notably, plaintiffs have challenged the constitutionality of the Maryland parole system as applied to Juvenile Offenders, but they have not challenged the particular sentence of any
- 16 -

Juvenile Offender. Indeed, the resolution of this case would not change the existing sentence of any offender.
Movants also fail to show that defendants will not adequately represent or protect their interests. As noted, when, as here, “the party who shares the intervenor’s objective is a government agency, the intervenor has the burden of making a strong showing of inadequacy.” Stuart, 706 F.3d at 350. Individual Movants have not met this burden.
Individual Movants seek to distinguish themselves from the proposed intervenors in Stuart, arguing that they “do not concede that their ultimate objective is the same as the State’s . . . .” (ECF 18 at 3) (citing Stuart, 706 F.3d at 352). As noted, they refer to numerous instances in which the State has taken positions. that do not coincide with those of victims. See, e.g., ECF 9-2 at 9-14; see also ECF 18 at 7. For example, in the Reply, Movants state that their “ultimate objective” is “to uphold the constitutionality of Criminal Law Article § 2-201(b), and to prevent unwarranted out-of-time resentencing hearings . . . .” ECF 18 at 7. Yet, it is abundantly clear that the State’s objective overlaps substantially with Movants’ objectives. For example, the State addresses the constitutional and statutory duty of the Attorney General to appear “‘in the courts as the defender of the validity of enactments of the General Assembly.’” ECF 16, ¶ 5 (quoting Duckworth v. Deane, 393 Md. 524, 537, 903 A.2d 883, 890 (2006)) (Duckworth’s internal citations omitted).
Moreover, the Individual Movants’ efforts to highlight defendants’“adverse interests” do not demonstrate inadequate representation by the State. See Stuart, 706 F.3d at 350. The Attorney General’s responsibility to apply or uphold the law does not constitute the kind of adverse interest contemplated by Virginia v. Westinghouse Elect. Corp., supra, 542 F.2d at 216. Nor have
- 17 -

Movants presented any authority or basis to suggest that the Attorney General was skirting the State’s legal obligations in the cases cited by Movants.
Intervention of right is permitted only when all the criteria set forth in Fed. R. Civ. P. 24(a)(2) have been met. Stuart, 706 F.3d at 349-50. Here, Individual Movants have failed to show that they have a“significantly protectable” interest in the subject matter of this case, which in turn diminishes the likelihood that this interest would be impaired by resolution of this matter. Additionally, Individual Movants have not presented sufficient support to suggest that defendants will not“adequately represent” any interest they may have in this case. See Stuart, 706 F.3d at 349-50. Accordingly, the Motion, insofar as it is based on intervention of right, shall be denied.
B. Permissive Intervention In the alternative, the Individual Movants seek permissive intervention, pursuant to Fed. R. Civ. P. 24(b)(1)(B). MCVRC joins the Motion for permissive intervention, claiming“to serve as a voice for those yet-to- be- identified victim’s representatives of the others [sic] murderers who have been ignored so far, and are on the cusp of having their individual victims’ rights eliminated.” ECF 9-2 at 15. They rely largely on the arguments previously advanced to support the Motion based on intervention of right. ECF 9-2 at 17. For the reasons stated below, I shall deny permissive intervention under Fed. R. Civ. P. 24(b)(1)(B). Where “multiple crime victims” are involved, the CVRA requires courts to “fashion a reasonable procedure” for victims to be heard “that does not unduly complicate or prolong the proceedings.” 18 U.S.C. § 3771(d)(2). Relying on this provision, Movants argue that MCVRC should be permitted to intervene “because the number of projected victims is unknown and it would be impracticable to individually afford each of these victims his or her rights.” ECF 9-2 at
- 18 -

16. MCVRC contends that its intervention would suffice as a “reasonable procedure” that would protect the rights of unknown victims’ representatives. Id. Further, Movants argue, inter alia, that amicus curiae status “does not adequately represent [their] interests” because they “are more than friends of the court or interested bystanders.” Id. at 19. According to Movants,“[t]hey have a legal and factual interest by their status in the case as the victim, or as the victim’s representative.” Id.
Defendants have not specifically addressed the Movants’ arguments for permissive intervention. See ECF 16, State’s Response. However, defendants state that they “have already conveyed to the movants’ counsel that the defendants will consent to a motion for leave permitting the movants to submit briefing as amicus curiae.” Id. at 1.
Plaintiffs argue that Movants do not meet the Fourth Circuit’s standard for permissive intervention under Fed. R. Civ. P. 24(b). See ECF 17, Opposition, at 13-19. In particular, plaintiffs contend that Movants“offer no specific claim or defense that shares any factual or legal questions with the issues raised in this case.” Id. at 14. Plaintiffs also argue that intervention by Movants“will have profoundly burdensome and prejudicial impacts at every stage of proceedings before this Court . . . .” Id. at 15. They explain: “Movants entry into this case as formal parties would expand discovery and trial testimony enormously, causing delay and expense, and would potentially derail the Court and the trier of fact from focusing on the core constitutional issues in dispute.” Id. at 15. In their view, providing Movants with amicus status is an appropriate alternative to intervention. Id. at 18.
In their Reply, Movants reiterate that “[a]micus status is insufficient to protect [their] interests.” ECF 18 at 23. In particular, Movants assert that “[c]rime victims and their representatives in Maryland are more than just mere members of the public.” Id. They argue:
- 19 -

“The allegations in this case attack the legality of the sentences for those who have committed first degree murder when under age 18, and victim’s representatives of those murderers should be accorded the same rights that they would have in state court.” Id. at 24. Movants also dispute that intervention would cause a delay (ECF 18 at 20-21)
To be sure, the Movants have expressed concern that their interests do not coincide with those of the State, because the State might agree that the disputed statutory provisions and/or the parole system are unconstitutional– a view with which they vigorously disagree. But, assuming, arguendo, that the statutory provisions and/or the parole system are unconstitutional, Movants would not have an interest adverse to the State, because Movants have no legal right to obtain enforcement of laws that are unconstitutional.
Movants contend that intervention will not delay this case, noting that they have already filed a proposed answer and proposed motions (see ECF 18 at 21; ECF 9-5; ECF 9-6; ECF 9-7; ECF 9-8), and will seek limited discovery. ECF 18 at 21. However, Movants have not addressed the considerable complication that will be caused by including additional parties to this case. They have also failed to show that granting intervention “will not unduly delay or prejudice the adjudication of the original parties’ rights.” Fed. R. Civ. P. 24(b)(3). In my view, permitting intervention of several individuals and an organization would“result in undue delay in adjudication of the merits, without a corresponding benefit to existing litigants, the courts, or the process,” particularly considering that the “existing Defendants are zealously pursuing the same ultimate objectives as the movants.” Stuart v. Huff, 11-CV-804, 2011 WL 6740400, at *3 (D.M.D.N.C. Dec. 22, 2011), aff’d, Stuart, 702 F.3d 345; see also Shanghai Meihao Elec., Inc., 223 F.R.D. at 387.
- 20 -

Finally, conferring amicus status on Movants is a suitable alternative for them to bring their concerns to the Court’s attention. See, e.g., Stuart, 706 F.3d at 354 (denying intervention and noting that the movants “retain[ed] the ability to present their views . . . by seeking leave to file amicus briefs”); Brandt, 636 F.3d at 136-37 (concluding that amicus status for a victim representative seeking intervention“was fully commensurate . . . and provided [her] a full and fair opportunity . . . to provide information and communicate her views to the court”).
IV. Conclusion For the foregoing reasons, Movants’ Motion to Intervene (ECF 9) shall be denied. However, they shall be granted amicus status. A separate Order follows, consistent with this Memorandum Opinion.

Date: August 30, 2016

/s/ Ellen Lipton Hollander United States District Judge

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 Case 1:16-cv-01021-ELH Document 33 Filed 08/30/16 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

MARYLAND RESTORATIVE JUSTICE INITIATIVE et al.,
Plaintiffs,
v.
GOVERNOR LARRY HOGAN et al., Defendants.

Civil Action No. ELH-16-1021

ORDER For the reasons stated in the accompanying Memorandum Opinion, it is this 30th day of August, 2016, by the United States District Court for the District of Maryland, ORDERED that: 1) The Motion to Intervene filed by Roberta Roper, Patti Krogmann, Deborah Kempl,
Jessica Fisher, and the Maryland Crime Victim Resource Center, Inc. (ECF 9) is DENIED; and 2) Movants shall be granted amicus curiae status in this case.
/s/ Ellen Lipton Hollander United States District Judge

 
 Case 1:16-cv-01021-ELH Document 48 Filed 12/07/16 Page 1 of 2

Chambers of Ellen Lipton Hollander
District Court Judge

United States District Court District Of Maryland

101 West Lombard Street Baltimore, Maryland 21201
410-962-0742

December 7, 2016

MEMORANDUM TO COUNSEL

Re: Maryland Restorative Justice Initiative et al v. Hogan et al. Civil Action No. ELH-16-1021

Dear Counsel:

As you know, a motions hearing has been scheduled for January 4, 2017, to address the defendants’ motion to dismiss, or in the alternative, motion for summary judgment. ECF 23 (“Motion”).

After the Motion was fully briefed, the Fourth Circuit issued an opinion in Leblanc v. Mathena, ___ F.3d ____, 2016 WL 6652438 (4th Cir. Nov. 7, 2016), a habeas case under 28 U.S.C. § 2254. There, the petitioner had been sentenced to life imprisonment without parole for a nonhomicide offense that he committed at the age of sixteen. He sought post-conviction relief in state court after the Supreme Court decided Graham v. Florida, 560 U.S. 48 (2010).

The Virginia courts concluded that Virginia’s geriatric release program provided a meaningful opportunity for release, beginning when the prisoner reaches the age of 60. The Fourth Circuit disagreed. It concluded that the petitioner was “entitled to relief from his unconstitutional sentence.” Leblanc, 2016 WL 6652438, at *1.

The Fourth Circuit explained, id.:

Most significantly, Virginia courts unreasonably ignored the plain language of the procedures governing review of petitions for geriatric release, which authorize the State Parole Board to deny geriatric release for any reason, without considering a juvenile offender's maturity and rehabilitation. In light of the lack of governing standards, it was objectively unreasonable for the state courts to conclude that geriatric release affords Petitioner with the “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation” Graham demands. (Quoting Graham, 560 U.S. at 74).

In view of Leblanc, by the close of business on December 16, 2016, the parties are directed simultaneously to submit memoranda, not to exceed seven pages in length, addressing the impact, if any, of Leblanc on the Motion. Each side may reply by the close of business on December 28, 2016.

Case 1:16-cv-01021-ELH Document 48 Filed 12/07/16 Page 2 of 2 Despite the informal nature of this Memorandum, it is an Order of the Court, and the Clerk is directed to docket it as such.
Very truly yours, /s/
Ellen Lipton Hollander United States District Judge
- 2 -

 
 Case 1:16-cv-01021-ELH Document 51 Filed 12/20/16 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

MARYLAND RESTORATIVE

*

JUSTICE INITIATIVE, et al.,

Plaintiffs,

*

v.

* Case No. 1:16-cv-01021-ELH

GOVERNOR LARRY HOGAN, et al.,

*

Defendants.

*

*

* * * * **** * * *

PLAINTIFFS’ CONSENT MOTION FOR WRIT OF HABEAS CORPUS

Plaintiffs, Maryland Restorative Justice Initiative, Calvin McNeill, Nathaniel Foster, and Kenneth Tucker, have filed suit against various state actors challenging Maryland’s parole system, as applied to individuals sentenced to life in prison for offenses of which they were convicted as juveniles. (ECF No. 1.) Plaintiffs McNeill, Foster, and Tucker currently are imprisoned at state correctional facilities.
Defendants have moved to dismiss the Complaint, or in the alternative, for summary judgment. (ECF No. 23.) Plaintiffs strongly oppose defendants’ motion, and the parties and the Court have deemed the issues therein so significant as to justify extensive briefing, and third parties filed materials as amici. (See ECF Nos. 34, 41, 43-45.) This Court has set a hearing on the defendants’ motion for January 4, 2017. (ECF No. 47.) Plaintiffs now seek Writs of Habeas Corpus to be directed by this Court to the U.S. Marshals Service and the wardens of the inmates’ correctional institutions so that they may be present at this important and potentially dispositive hearing. Defendants do not object to this motion.

Case 1:16-cv-01021-ELH Document 51 Filed 12/20/16 Page 2 of 3
For the reasons set forth in the accompanying Memorandum of Law, plaintiffs respectfully request that the attached Writs of Habeas Corpus be signed by this Court, allowing them to attend the January 4 hearing in their case.
Respectfully submitted,
/s/__________________ Deborah A. Jeon (D. Md. Bar No. 06905) Sonia Kumar (D. Md. Bar No. 07196) ACLU OF MARYLAND 3600 Clipper Mill Road, Suite 350 Baltimore, MD 21211 TEL: 410-889-8550 x 103 FAX: 410-336-7838 EMAIL: jeon@aclu-md.org; kumar@aclu-md.org
Barry Fleishman (D. Md. Bar No. 15869) KILPATRICK TOWNSEND STOCKTON LLP 607 14th Street, N.W. Suite 900 Washington, DC 20005 TEL: 202.508.5835 FAX: 202.585.0003 EMAIL: bfleishman@kilpatricktownsend.com Counsel for Plaintiffs
Dated: December 20, 2016
2

Case 1:16-cv-01021-ELH Document 51 Filed 12/20/16 Page 3 of 3

CERTIFICATE OF SERVICE
I certify that service of the foregoing PLAINTIFFS’ MOTION FOR HABEAS CORPUS and supporting materials have been made by electronic cm/ecf, addressed to :
Stephen M. Sullivan Assistant Attorney General for Maryland Chief of Civil Litigation 200 St. Paul’s Place Baltimore, MD 21202 Tel: (410) 576-6325 Fax: (410) 576-6955 ssullivan@oag.state.md.us
Michael O. Doyle State of Maryland Office of the Attorney General Department of Public Safety and Correctional Services 300 East Joppa Road, Suite 1000 Towson, MD 21286 Tel: (410) 339-7567 Fax: (410) 339-4243 mdoyle@dpscs.state.md.us
Counsel for Defendants

Dated: December 20, 2016

/s/__________________
Deborah A. Jeon (D. Md. Bar No. 06905) Sonia Kumar (D. Md. Bar No. 07196) ACLU OF MARYLAND 3600 Clipper Mill Road, Suite 350 Baltimore, MD 21211 TEL: 410-889-8550 x 103 FAX: 410-336-7838 EMAIL: jeon@aclu-md.org; kumar@aclu-md.org

3

Case 1:16-cv-01021-ELH Document 51-1 Filed 12/20/16 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

MARYLAND RESTORATIVE

*

JUSTICE INITIATIVE, et al.,

Plaintiffs,

*

v.

* Case No. 1:16-cv-01021-ELH

GOVERNOR LARRY HOGAN, et al.,

*

Defendants.

*

*

* * * * **** * * *

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ CONSENT MOTION FOR WRIT OF HABEAS CORPUS
District courts are empowered with the ability to grant writs of habeas corpus when individuals are imprisoned by authority of a court in the United States. See 28 U.S.C. § 2241. Here, three of the plaintiffs involved this bellweather case are incarcerated by the State. Plaintiffs Calvin McNeill and Kevin Tucker are in custody at Jessup Correctional Institution. Plaintiff Nathaniel Foster is imprisoned at Eastern Correctional Institution East (ECI), in Westover.1 (ECF No. 1.)
All three inmates were juveniles at the time they committed offenses for which they were sentenced to life imprisonment under Maryland’s mandatory sentencing guidelines. They challenge the constitutionality of the current parole scheme in Maryland and contend that their youth status at the time of their offenses was not considered appropriately during sentencing or
1 Mr. Foster was recently transferred from Hagerstown to ECI.

Case 1:16-cv-01021-ELH Document 51-1 Filed 12/20/16 Page 2 of 3
subsequent parole proceedings. This is an important case both to the named plaintiffs and to many other “juvenile lifers” similarly situated to these plaintiffs.
Defendants have moved to dismiss the plaintiffs’ claims on multiple grounds. Should this Court grant defendants’ motion, plaintiffs fear they will remain in prison for the rest of their lives, on sentences that failed to adequately consider their youth and immaturity at the time of the offenses. The Supreme Court has weighed in that these factors should be considered. See, e.g., Montgomery v. Louisiana, 577 U.S. __, 136 S.Ct. 718, 733-34 (2016); Miller v. Alabama, 567 U.S. __, 132 S.Ct. 2455, 2469 (2012). Plaintiffs ask that they be allowed to be present at this potentially dispositive hearing.
On December 19, 2016, Counsel for plaintiffs, Barry Fleishman, spoke with counsel for defendants, Michael Doyle, who advised that defendants do not object to this motion.
For the foregoing reasons, plaintiffs respectfully urge this Court to grant their Consent Motion for Writ of Habeas Corpus, permitting them to be present to witness the January 4, 2017 oral arguments in their case.

Case 1:16-cv-01021-ELH Document 51-1 Filed 12/20/16 Page 3 of 3

Dated: December 20, 2016

Respectfully Submitted,
/s/__________________
Deborah A. Jeon (D. Md. Bar No. 06905) Sonia Kumar (D. Md. Bar No. 07196) ACLU OF MARYLAND 3600 Clipper Mill Road, Suite 350 Baltimore, MD 21211 TEL: 410-889-8550 x 103 FAX: 410-336-7838 EMAIL: jeon@aclu-md.org; kumar@aclu-md.org
Barry Fleishman (D. Md. Bar No. 15869) KILPATRICK TOWNSEND STOCKTON LLP 607 14th Street, N.W. Suite 900 Washington, DC 20005 TEL: 202.508.5835 FAX: 202.585.0003 EMAIL: bfleishman@kilpatricktownsend.com
Counsel for Plaintiffs

Case 1:16-cv-01021-ELH Document 51-2 Filed 12/20/16 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

MARYLAND RESTORATIVE

*

JUSTICE INITIATIVE, et al.,

Plaintiffs,

*

v.

* Case No. 1:16-cv-01021-ELH

GOVERNOR LARRY HOGAN, et al.,

*

Defendants.

*

*

* * * * **** * * *

ORDER ON PLAINTIFFS’ CONSENT MOTION FOR WRITS OF HABEAS CORPUS

Upon consideration of Plaintiffs’ Consent Motion for Writ of Habeas Corpus, it is ORDERED:

1. Plaintiffs’ motion is GRANTED; and 2. The attached Writs of Habeas Corpus are signed, and plaintiffs are directed to
forward said Writs to the United States Marshal’s Service and the wardens at Jessup Correctional Institution and Eastern Correctional Institution East in Westover.

________________________________ Date

______________________________ Ellen L. Hollander United States District Judge

Case 1:16-cv-01021-ELH Document 51-3 Filed 12/20/16 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

MARYLAND RESTORATIVE JUSTICE

INITIATIVE, et al.,

Plaintiffs

*

v.

*

Case No.: 1:16-cv-01021-ELH

GOVERNOR LARRY HOGAN, et al.,

Defendants.

*

WRIT OF HABEAS CORPUS

TO: United States Marshal, District of Maryland, and

(Check all that apply. Note: if prisoner is in the custody of the Maryland Division of Correction, box for Transportation Unit MUST be checked.)

 Warden Eastern Correctional Institution East 30420 Revells Neck Rd. Westover, MD 21890

 Transportation Unit MRDCC 550 East Madison Street Baltimore, Maryland 21202

Greetings:
YOU ARE HEREBY COMMANDED to produce the body of Nathaniel Foster, I.D. No. # 174-966, D.O.B. 12/19/1965, who is presently in your care, custody and control, for official proceedings, at the United States Courthouse for the District of Maryland, 101 West Lombard Street, Baltimore, Maryland, 21201 at 10:00 a.m., on January 4, 2017. YOU ARE FURTHER COMMANDED to return the prisoner back to his original place of incarceration at the conclusion of the proceedings.

Let this writ be issued as prayed this day of

, 20 .

Case 1:16-cv-01021-ELH Document 51-3 Filed 12/20/16 Page 2 of 2
_______________________________ Ellen L. Hollander United States District Judge Felicia C. Cannon, Clerk By:
_______________________________ Deputy Clerk Name., Deputy Clerk

Case 1:16-cv-01021-ELH Document 51-4 Filed 12/20/16 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

MARYLAND RESTORATIVE JUSTICE

INITIATIVE, et al.,

Plaintiffs

*

vs.

*

Case No.: 1:16-cv-01021-ELH

GOVERNOR LARRY HOGAN, et al.,

Defendants.

*

WRIT OF HABEAS CORPUS

TO: United States Marshal, District of Maryland, and

(Check all that apply. Note: if prisoner is in the custody of the Maryland Division of Correction, box for Transportation Unit MUST be checked.)

 Warden Jessup Correctional Institution 7800 House of Correction Road Jessup, MD 20794

 Transportation Unit MRDCC 550 East Madison Street Baltimore, Maryland 21202

Greetings:

YOU ARE HEREBY COMMANDED to produce the body of Calvin McNeill, I.D. No. 163182, D.O.B. 7/16/64, who is presently in your care, custody and control, for official proceedings, at the United States Courthouse for the District of Maryland, 101 West Lombard Street, Baltimore, Maryland, 21201 at 10:00 a.m., on January 4, 2017. YOU ARE FURTHER COMMANDED to return the prisoner back to his original place of incarceration at the conclusion of the proceedings.

Let this writ be issued as prayed this day of

, 20 .

Case 1:16-cv-01021-ELH Document 51-4 Filed 12/20/16 Page 2 of 2
_______________________________ Ellen L. Hollander United States District Judge Felicia C. Cannon, Clerk By:
________________________________ Deputy Clerk Name., Deputy Clerk

Case 1:16-cv-01021-ELH Document 51-5 Filed 12/20/16 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

MARYLAND RESTORATIVE JUSTICE

INITIATIVE, et al.,

Plaintiffs

*

vs.

*

Case No.: 1:16-cv-01021-ELH

GOVERNOR LARRY HOGAN, et al.,

Defendants.

*

WRIT OF HABEAS CORPUS

TO: United States Marshal, District of Maryland, and

(Check all that apply. Note: if prisoner is in the custody of the Maryland Division of Correction, box for Transportation Unit MUST be checked.)

 Warden Jessup Correctional Institution 7800 House of Correction Road Jessup, MD 20794

 Transportation Unit MRDCC 550 East Madison Street Baltimore, Maryland 21202

Greetings:

YOU ARE HEREBY COMMANDED to produce the body of Kenneth Tucker, I.D. No. 130850, D.O.B. 6/28/56, who is presently in your care, custody and control, for official proceedings, at the United States Courthouse for the District of Maryland, 101 West Lombard Street, Baltimore, Maryland, 21201 at 10:00 a.m., on January 4, 2017. YOU ARE FURTHER COMMANDED to return the prisoner back to his original place of incarceration at the conclusion of the proceedings.

Let this writ be issued as prayed this day of

, 20 .

Case 1:16-cv-01021-ELH Document 51-5 Filed 12/20/16 Page 2 of 2
_______________________________ Ellen L. Hollander United States District Judge Felicia C. Cannon, Clerk By: _________________________________ Deputy Clerk Name., Deputy Clerk

 
 Case 1:16-cv-01021-ELH Document 52 Filed 12/20/16 Page 1 of 1
Case 1:16-cv-01021-ELH Document 51-2 Filed 12/20/16 Page 1 of 1
nc~Ci~I··.''ED
IB;r.S';i_'''~;~-::F:f~:w·-'.::·:/ ni.io~-;so
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLANDlUib DEC 20 P 2: 53

MARYLAND RESTORATIVE

•

WSTICE INITIATIVE, eta/.,

Plaintiffs,

*

V.
GOVERNOR LARRY HOGAN, eta/., Defendants.

* Case No. 1:16-cv-01021-ELH
•
••

*
* * * * **** * • •
ORDER ON PLAINTIFFS' CONSENT MOTION FOR WRITS OF HABEAS CORPUS Upon consideration of Plaintiffs' Consent Motion for Writ of Habeas Corpus, it is
ORDERED:

I. Plaintiffs' motion is GRANTED; and 2. The attached Writs of Habeas Corpus are signed, and plaintiffs are directed to
forward said Writs to the United States Marshal's Service and the wardens at Jessup Correctional Institution and Eastern Correctional Institution East in Westover.

{L(wlf~.p
Date

Ellen L. Hollander United States District Judge

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

MARYLAND RESTORATIVE JUSTICE INITIATIVE et al.,
Plaintiffs,
v.
GOVERNOR LARRY HOGAN et al., Defendants.

Civil Action No. ELH-16-1021

MEMORANDUM OPINION Plaintiffs Calvin McNeill, Nathaniel Foster, and Kenneth Tucker (collectively, the “Named Plaintiffs”), along with the Maryland Restorative Justice Initiative (“MRJI”), filed a 61page complaint, challenging the constitutionality of Maryland’s parole system as applied to individuals who received sentences of life imprisonment, with parole, for homicide offenses they committed as juveniles (“Juvenile Offender” or “Juvenile Offenders”). ECF 1 (“Complaint”). MRJI, “a grassroots membership organization dedicated to prisoners’ rights,” has sued on “behalf of its members” (ECF 1, ¶¶ 13, 16), “including more than 100 juvenile lifers and their families…” Id., ¶ 119.1 The defendants are four Maryland officials who have been sued in their official capacities: Governor Larry Hogan; David Blumberg, Chair of the Maryland Parole Commission (“MPC”); Stephen Moyer, Secretary of the Maryland Department of Public Safety and

1 The Complaint states that in Maryland there are “more than 200 individuals” serving life sentences for offenses committed as juveniles. ECF 1 ¶ 8. Plaintiffs assert that “most” of the “more than 200 parole-eligible juvenile lifers in Maryland” are members of MRJI. ECF 35 at 8.

Correctional Services (“DPSCS”); and Dayena M. Corcoran, Commissioner of the Maryland Division of Correction (“DOC”)2 (collectively, the “State”).
The Complaint contains three counts: “Violation of the Eighth Amendment Prohibition Against Cruel and Unusual Punishment and 42 U.S.C. § 1983 (Count One); “Violation of Article 25, Md. Decl. of Rights Prohibition Against Cruel or Unusual Punishment” (Count Two); and “For Declaratory Judgment that Maryland Code, Criminal Law Article § 2-201(b) Is Unconstitutional” (Count 3). ECF 1.3
Plaintiffs assert that they “have been and continue to be denied a meaningful opportunity for release,” in violation of the Eighth Amendment to the Constitution and Article 25 of the Maryland Declaration of Rights. ECF 1, ¶ 1. They claim that although Maryland ostensibly provides parole eligibility for Juvenile Offenders serving life sentences, in practice under the Maryland parole system such sentences are converted into unconstitutional “de facto” sentences of life without parole. Id., ¶¶ 11-12, 167-185. According to plaintiffs, “of more than 200 paroleeligible juvenile lifers in Maryland,” “no one has been paroled in the last twenty years.” ECF 35 at 8 (emphasis in original); see ECF 1, ¶¶ 58; 64; 74; 117, 119. In support of their claim of unconstitutionality, plaintiffs rely on several decisions of the Supreme Court, including Graham v. Florida, 560 U.S. 48, 82 (2010); Miller v. Alabama, 567 U.S.___, 132 S. Ct. 2455, 2469 (2012); and Montgomery v. Louisiana, ___U.S.___, 136 S. Ct. 718, 734 (2016).
Further, plaintiffs seek a declaration that two provisions of Maryland law are unconstitutional: Md. Code (2008 Repl. Vol.), § 7-301(d)(4) of the Correctional Services (“C.S.”) Article and Md. Code (2012 Repl. Vol.), § 2-201(b) of the Criminal Law Article
2 Plaintiffs initially sued Wayne Webb, former Commissioner of DOC. ECF 1. However, Corcoran is the current Commissioner of DOC and has been substituted as a defendant. See ECF 13.
3 Plaintiffs denominate their counts with both words and a number. - 2 -

(“C.L.”). According to plaintiffs, C.L. § 2-201(b) is unconstitutional because “it mandates judges to impose life sentences without adequate consideration of youth status . . . resulting in grossly disproportionate punishment…” ECF 1, ¶ 15. And, they argue that C.S. § 7-301(d)(4) is unconstitutional as applied to Juvenile Offenders because the Governor is not required to follow or consider parole recommendations made by the MPC (id. ¶ 72), nor is he guided by any factors or standards, either statutory or regulatory, in granting or denying parole. Id. ¶ 73.
In addition, plaintiffs challenge the policies and practices implemented by the MPC. See id, ¶¶ 81-90. In particular, plaintiffs maintain that the risk assessment tools used by the MPC to assess individuals “penalize those who were young at the time of offense…” by “assessing them as they were when they were most risky…” ECF 1 ¶¶ 61, 87 (alterations added). Plaintiffs also claim that the automatic classification of all Juvenile Offenders to maximum security upon commitment to DOC, and the categorical bar for lifers on progressing below medium security, denies Juvenile Offenders opportunities to advance through the DOC system to demonstrate their maturity and rehabilitation, “[b]ecause virtually every aspect of programming is determined by an individual’s classification level.” Id. ¶ 99; see also id., ¶ 62. Plaintiffs also argue that “juveniles are severely limited in their ability to demonstrate rehabilitation through the gradual earning of additional privileges and the ability to succeed in lower-security settings.” Id., ¶ 99.
Pursuant to Fed. R. Civ. P. 8(c), 12(b)(1), and 12(b)(6), defendants have filed a motion to dismiss, or in the alternative, for summary judgment (ECF 23), supported by a memorandum (ECF 23-1) (collectively, “Motion” or “Motion to Dismiss”), and several exhibits. ECF 23-3 to ECF 23-5. Plaintiffs oppose the Motion (ECF 35, “Opposition”) and have submitted a Rule 56(d) declaration from one of their lawyers, asserting a need for discovery. On that basis, they oppose conversion to summary judgment. ECF 35-1. Defendants replied (ECF 41, “Reply”),
- 3 -

supported by an affidavit. ECF 41-1. Plaintiffs moved to file a surreply (ECF 43), which I granted by Order of January 3, 2017 (ECF 59).
In an Order of August 30, 2016 (ECF 33), Roberta Roper, Deborah Kempl, Jessica Fisher, Patti Krogmann, and the Maryland Crime Victims’ Resource Center, Inc. (collectively, “Amici”) were granted amicus curiae status in the case. Id.4 They submitted a memorandum in support of the Motion to Dismiss (ECF 34), supported by three documents previously filed with the court and refiled as ECF 34-1 to ECF 34-3. Plaintiffs have moved to strike the amici submission (ECF 36), supported by a memorandum (ECF 36-1) (collectively, “Motion to Strike”). Amici have responded (ECF 40) and plaintiffs have replied. ECF 42.
By Order of December 7, 2016 (ECF 48), I directed counsel to submit supplemental memoranda addressing LeBlanc v. Mathena, 841 F.3d 256, 261 (4th Cir. 2016), a decision of the United States Court of Appeals for the Fourth Circuit issued on November 7, 2016, in regard to a habeas case.5 The parties submitted the requested memoranda on December 16, 2016. See ECF 49 (plaintiffs); ECF 50 (defendants). They submitted responses to the supplemental memoranda on December 28, 2016. See ECF 57 (plaintiffs); ECF 58 (defendants).
On January 4, 2017, the Court held a motions hearing at which oral argument was presented. See ECF 47; ECF 61.
For the reasons that follow, I shall deny the Motion to Strike. And, I shall grant in part and deny in part the Motion to Dismiss.
4 I denied the motion to intervene filed by Amici. See ECF 9 (Motion); ECF 33 (Order of August 30, 2016).
5 A petition for rehearing was denied on January 20, 2017.
- 4 -

I. Factual Background6
The Named Plaintiffs are adult inmates in Maryland correctional institutions. They are all serving sentences of life imprisonment, with parole,7 for homicides that they committed when they were juveniles, i.e., under the age of eighteen. ECF 1, ¶¶ 1, 13, 122, 136, 147.8
Calvin McNeill “was sentenced to life with parole under Maryland’s mandatory
sentencing scheme for felony murder” (ECF 1, ¶ 122) for “his role in a fatal robbery of a dice
game [sic] that occurred in 1981, the day he turned 17 years old.” Id. ¶ 120. When this suit was
filed in April 2016, McNeill was 51 years of age and had spent more than 35 years in prison for
this offense. Id. ¶ 121. He has earned “an exceptional institutional record in the DOC” (id.
¶ 124), has “taken advantage of every program available to him, earned positions of trust in
employment, and taken leadership roles in programs to promote alternatives to violence within
and outside DOC.” Id. ¶ 124. McNeill was recommended for “commutation” in 2008, “[i]n
recognition of this strong record . . . .” Id. ¶ 125. In 2011, “Governor O’Malley rejected this
recommendation without explanation.” Id. ¶ 126. McNeill’s sixth parole hearing was scheduled
for 2015 (id. ¶ 127) and, during that hearing, parole commissioners “told him they would be
6 The factual allegations are derived from the Complaint. ECF 1. Based on the procedural posture of the case, I shall assume the truth of these factual allegations. See E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011).
7 To be clear, the Complaint states that the Named Plaintiffs were sentenced to “life in prison” (ECF 1, ¶¶ 122, 137) or “life imprisonment.” Id. ¶ 147. According to the Complaint, only McNeill and Tucker were expressly sentenced to life with parole. Id. ¶¶ 120, 136.
8 In Maryland, a sentencing judge has discretion to suspend all or part of a parolable life sentence. Cathcart v. State, 397 Md. 320, 328, 916 A.2d 1008, 1013 (2007) (requiring imposition of period of probation upon suspension of execution of all or part of a life sentence); State v. Wooten, 277 Md. 114, 115, 352 A.2d 829, 839 (1976) (finding “nothing improper in the trial court’s suspension of all but the first eight years of the life sentence it imposed in this case”). However, the life sentences of the Named Plaintiffs were not suspended in any respect.
- 5 -

recommending him for a risk assessment.” Id. ¶ 128. As of the date of filing of the Complaint, the assessment had not occurred. Id.
In 1974, when Kenneth Tucker was seventeen years of age, he was sentenced to life with parole “under Maryland’s mandatory sentencing scheme . . . for participating in a robberymurder with another teenager.” Id. ¶ 136. According to plaintiffs, “Mr. Tucker’s co-defendant killed the victim.” Id. But, “[b]ecause the case involved a homicide that occurred during the course of a robbery, Mr. Tucker was charged with felony murder and faced a mandatory penalty of life in prison.” Id. ¶ 137. At the time suit was filed, Tucker was 59 years of age and had been incarcerated for 42 years. Id. ¶ 136.
Tucker allegedly “began turning his life around almost immediately upon his incarceration, earning his high school equivalency in 1975, an associate’s degree in 1989, and a bachelor’s degree in psychology in 1994.” Id. ¶ 139. Tucker has “obtained certification or training in several professions” and “is currently an observation aide in the prison hospital, where he provides consolation and coping strategies to terminally ill and mentally distressed peers.” Id. Tucker also belongs to the prison’s “Scholars program” and serves as a volunteer mentor. Id. Plaintiffs aver that as early as 1987, “case management recommended [Tucker’s] transfer to preferred trailer housing and medium security because of his good institutional adjustment and infraction-free record . . . .” Id. ¶ 140.
According to plaintiffs, “Mr. Tucker declined his parole hearing in 1996, believing the process was futile. He did not have any parole hearing again for nearly 20 years…as he did not see much point to reinstating hearings when no lifers were being paroled.” Id. ¶ 142. Tucker had his sixth parole hearing in 2014. Id. ¶ 143. “Commissioners who heard his case recommended that he progress to the next step, which is the risk assessment . . . .” Id. However, “[a]fter the
- 6 -

evaluation was completed, the parole commission denied parole and set his next hearing for 2017.” Id.
In 1983, “Nathaniel Foster was involved in a botched robbery attempt along with his codefendant,” during which “the victim was killed.” Id. ¶ 146. He was seventeen years old at the time. Id. Because Foster’s case “involved a homicide that occurred during a robbery, Mr. Foster was charged with first-degree murder and subjected to a mandatory penalty of life imprisonment . . . .” Id. ¶ 147. When this lawsuit was filed, Foster had been incarcerated for 32 years. Id. ¶ 149.
While incarcerated, Foster has maintained “an exemplary institutional record” with “only two minor infractions in the last three decades” and no “infraction of any kind in the last 16 years . . . .” Id. ¶ 150. Foster has also “pursued his education” and has “held a number of jobs while incarcerated including working in the canteen and cooking for the Officer’s Dining Room.” Id. ¶ 152. Foster “has been entrusted with extraordinary responsibilities in these jobs” (id.), and has also “served as a volunteer helping to care for men who are gravely and terminally ill at the prison hospital.” Id. ¶ 153.
According to plaintiffs, Foster has had numerous parole hearings in the last twenty years, including in 1995, 2000, 2005, 2008, 2011, and 2013. Id. ¶ 155; see also id. ¶¶ 156-165. During the 2013 hearing, the MPC noted: “Offender presented well, has excellent job evaluations and mentors younger prisoners. After considering all factors, a rehear for 1/2015 is suitable given nature & circumstances of offense.” Id. ¶ 164 (internal quotations omitted). However, “[a]t the beginning of 2015, disheartened by his sense of futility in the parole process as he was repeatedly recognized for having an excellent record but then denied release due to the offense itself, without regard for his juvenile status, Mr. Foster declined a parole hearing.” Id. ¶ 165.
- 7 -

Thereafter, during a 2016 parole hearing, Foster was “advised that he will be sent to Patuxent for a psychological evaluation.” Id.
Plaintiffs explain that “Maryland’s parole system changed dramatically in 1995, when then-Governor Parris Glendening took office and announced that he was unwilling to grant parole to individuals serving life sentences…” Id., ¶ 105. They observe that from 1995 to 2015, a period of two decades, Governors Glendening, Ehrlich, and O’Malley received recommendations for parole for 24 individuals serving life sentences, both juveniles and adults, and rejected every one, without explanation. Id. ¶ 116. See id. ¶ 117. In contrast, between 1969 and 1994, “181 lifers were paroled” by Governors Mandel, Hughes, and Schaefer. ECF 1, ¶ 118.
II. Maryland’s System for Prisoner Release A. Maryland Parole Commission
In general, parole is a discretionary system of conditional release administered by the MPC. See C.S. § 7-101(i). Many inmates are eligible for parole after serving one-quarter of their sentences. C.S. § 7-301(a). However, inmates serving sentences for violent crimes, as defined in C.S. § 7-101(m), must serve half of their sentences before they are eligible for parole. C.S. § 7301(c).
According to the State, “[t]he law governing parole eligibility for inmates serving parolable life sentences typically entitles them to earlier parole consideration than that available to inmates serving a term of years for a violent crime.” ECF 23-1 at 15 (emphasis in original). Defendants explain that an inmate serving a life sentence ordinarily is eligible for parole after serving fifteen years of the sentence, less diminution credits. C.S. § 7-301(d)(1). However, if the case is one in which the prosecutor sought a sentence of death or life without the possibility
- 8 -

of parole, under former C.L. § 2-303 or C.L. § 2-304, the inmate is not eligible for parole until
after he or she serves twenty-five years, less diminution credits. C.S. § 7-301(d)(2).9
In all cases, the applicable statute and regulations require the MPC to consider several
factors in determining whether to grant parole, including, for example, the circumstances of the
crime and the inmate’s progress during confinement. C.S. § 7-305; see also Maryland Code of
Administrative Regulations (“COMAR”) § 12.08.01.18 (1995) (listing criteria to be considered).
Notably, after this suit was filed, the MPC enacted new regulations requiring it to
consider certain factors in determining whether a prisoner who committed a crime as a juvenile
is suitable for release on parole. See COMAR 12.08.01.18.A(3) (amended October 24, 2016).10
These factors are as follows, id.:
(a) Age at the time the crime was committed;
(b) The individual’s level of maturity and sense of responsibility at the time of the crime was [sic] committed;
(c) Whether influence or pressure from other individuals contributed to the commission of the crime;
(d) Whether the prisoner’s character developed since the time of the crime in a manner that indicates the prisoner will comply with the conditions of release;
(e) The home environment and family relationships at the time the crime was committed;
9 An inmate serving a parolable life sentence cannot be released through the application of diminution credits, but application of credits will result in parole eligibility after approximately eleven and a half years, or approximately twenty years if a sentence of death or life without the possibility of parole was initially sought but not imposed.
10 The MPC has been delegated legislative authority to “adopt regulations governing its policies and activities . . .” C.S. § 7-207(a)(1). Thus, its regulations have the force of law. See State v. Roshchin, 446 Md. 128, 148 n.20, 130 A.3d 453, 455 n.20 (2016) (explaining that legislative regulations “receive statutory force upon going into effect”)); Building Materials Corp. of Am. v. Board of Educ. of Baltimore County, 428 Md. 572, 591 n.25, 53 A.3d 347, 358, n. 25 (2012) (“Legislative regulations result from a specific statutory grant, and are treated and enforced as binding law.”).
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(f) The individual’s educational background and achievement at the time the crime was committed; and (g) Other factors or circumstances unique to prisoners who committed crimes at the time the individual was a juvenile that the Commissioner determines to be relevant. The DOC also recently revised its policies regarding prisoners serving life sentences for crimes committed as juveniles. The Division’s Case Management Manual now allows such an inmate to be classified to minimum or pre-release security if the MPC recommends that the inmate participate in “outside testing and/or work release.” ECF 23-4 (Executive Directive OPS.100.0004.5.D.).
B. Role of the Governor Maryland’s Governor has a significant role in regard to parole for anyone serving a life sentence. Under C.S. § 7-301(d)(4), the Governor must approve a decision of the MPC to grant parole to an inmate who has served fewer than twenty-five years of a life sentence, without application of diminution credits. C.S. § 7-301(d)(4) states: “Subject to paragraph (5) of this subsection, if eligible for parole under this subsection, an inmate serving a term of life imprisonment may only be paroled with the approval of the Governor.” Pursuant to C.S. § 7301(d)(5), such approval is not required if the Parole Commission elects to parole an inmate who has served twenty-five years or more of a life sentence. However, even in that circumstance, the Governor “may disapprove the decision” of the MPC with regard to such an inmate. C.S. § 7301(d)(5)(ii).11 Since 2011, if the MPC elects to parole an inmate who has served at least
11 C.S. § 7-301(d)(5) states: (5)(i) If the Commission decides to grant parole to an inmate sentenced to life imprisonment who has served 25 years without application of - 10 -

twenty-five years, and the Governor does not disapprove the MPC’s decision within 180 days of
receiving notice of it, the parole decision “becomes effective.” C.S. § 7-301(d)(5)(iii).12
Notably, there are currently no statutory or regulatory provisions that govern the
Governor’s exercise of his discretion.
However, on February 2, 2017, Delegate Pamela Queen and eleven co-sponsors
introduced in the Maryland House of Delegates House Bill 723, “Inmates – Life Imprisonment –
Parole Reform.” The bill proposes to amend C.S. § 7-301 by repealing subsections d(4) and d(5)
in their entirety. Under the terms of the proposed bill, the Governor would no longer have a role
in approving or disapproving decisions of the MPC as to parole for individuals serving life
sentences. See H.B. 723 at 3 (2017 Regular Session).13
The proposed bill sets forth its purposes. It states, in relevant part, id. at 1:
FOR the purpose of repealing certain provisions that provide that inmates serving a term
of life imprisonment may be paroled only with the Governor’s approval, subject to certain provisions; repealing certain provisions that require certain parole decisions to be transmitted to the Governor under certain circumstances; repealing certain provisions that authorize the Governor to disapprove certain parole decisions in a certain manner; repealing certain provisions that provide that if the Governor does not disapprove a certain parole decision in a certain manner within a certain time period, the
diminution of confinement credits, the decision shall be transmitted to the Governor.
(ii) The Governor may disapprove the decision by written transmittal to the Commission.
(iii) If the Governor does not disapprove the decision within 180 days after receipt, the decision becomes effective. 12 According to the State, these laws also apply to inmates serving sentences of life with a portion of the sentence having been suspended. ECF 23-1 at 18.
13 A hearing is scheduled before the House Judiciary Committee on February 14, 2017, as to House Bill 723.
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decision becomes effective; making stylistic changes; making a technical correction; and generally relating to sentences of life imprisonment.
And, on February 3, 2017, Senator Nathaniel McFadden and six co-sponsors introduced
in the Senate of Maryland Senate Bill 694, “Inmates – Life Imprisonment – Parole Reform.” As
of this writing, I am unable to obtain the contents of this proposed bill. But, it was cross-filed
with House Bill 723.
I cannot predict whether these Bills will pass. But, two prior attempts, in 2015 and in
2016, were unsuccessful. See SB 531 (2016 Regular Session); SB 111 (2015 Regular Session);
HB 882 (2016 Regular Session); HB 303 (2015 Regular Session). In any event, I must analyze
the issues raised by plaintiffs’ Complaint under the existing Maryland statutory and regulatory
framework.
C. Executive Clemency
The Supreme Court explained the difference between parole and clemency in Solem v.
Helm, 463 U.S. 277 (1983). There, it said, id.at 300-01:
As a matter of law, parole and commutation are different concepts, despite some surface similarities. Parole is a regular part of the rehabilitative process. Assuming good behavior, it is the normal expectation in the vast majority of cases. The law generally specifies when a prisoner will be eligible to be considered for parole, and details the standards and procedures applicable at that time….Thus it is possible to predict, at least to some extent, when parole might be granted. Commutation, on the other hand, is an ad hoc exercise of executive clemency. A Governor may commute a sentence at any time for any reason without reference to any standards.
In Maryland, “‘Commutation of sentence’ means an act of clemency in which the
Governor, by order, substitutes a lesser penalty for the grantee’s offense for the penalty imposed
by the court in which the grantee was convicted.” C.S. § 7-101(d). Maryland’s Governor has the
power to grant commutations and pardons, which is derived from Article II, § 20 of the
Maryland Constitution. The Governor’s authority is codified at C.S. § 7-601, which permits the
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Governor, as relevant here, to “pardon an individual convicted of a crime subject to any conditions the Governor requires,” or to “remit any part of a sentence of imprisonment subject to any conditions the Governor requires, without the remission operating as a full pardon.”
The MPC has a role in the commutation of life sentences. See COMAR § 12.08.01.15 (1995). “The [Parole] Commission will recommend to the Governor a commutation of a life sentence where the case warrants special consideration or where the facts and circumstances of the crime justify special consideration, or both.” Id. § 12.08.01.15.B.
III. Motion to Strike As noted, amici submitted a memorandum in support of the Motion to Dismiss (ECF 34), along with three documents. ECF 34-1 to ECF 34-3.14 In their Motion to Strike, plaintiffs argue, inter alia, that the filings of amici improperly assert defenses not raised by the defendants themselves, including “res judicata, collateral estoppel, sovereign immunity and broad PLRA exhaustion requirements.” ECF 36-1 at 6; see also id. at 2 n. 1. Decisions about whether and how to allow amicus participation in federal district court are left to the discretion of the trial judge. See Finkle v. Howard County, Md., 12 F.Supp.3d 780 (D. Md. 2014). However, the Fourth Circuit has signaled that amici are typically not permitted to raise issues beyond those raised by the parties. Snyder v. Phelps, 580 F.3d 206, 216 (4th Cir. 2009), aff'd, 562 U.S. 443 (2011). The Fourth Circuit explained, 580 F.3d at 216: “Put simply, our Court and our sister circuits have consistently been wary, even prohibitive, of addressing an issue raised solely by an amicus.” In the exercise of my discretion, I will deny the Motion to Strike. However, I will not consider any arguments advanced by amici that were not raised by the parties themselves. 14 Amici had previously submitted the same documents with their Motion to Intervene. See ECF 9.
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IV. Standard of Review and Conversion to Summary Judgment Plaintiffs’ federal claims are predicated on 42 U.S.C. § 1983, which provides that a plaintiff may file suit against any person who, acting under color of state law, “subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws” of the United States. 42 U.S.C. § 1983; see also, e.g., Filarsky v. Delia, ___U.S.___, 132 S. Ct. 1657, 1660 (2012). To state a claim under § 1983, “a plaintiff must aver that a person acting under color of state law deprived him of a constitutional right or a right conferred by a law of the United States.” Wahi v. Charleston Area Medical Ctr., Inc., 562 F.3d 599, 615 (4th Cir. 2009); see Filarsky, 132 S. Ct. at 1661; Jenkins v. Medford, 119 F.3d 1156, 1159–60 (4th Cir. 1997). However, § 1983 “‘is not itself a source of substantive rights,’ but merely provides ‘a method for vindicating federal rights elsewhere conferred.’” Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). Plaintiffs’ state law claims are predicated on Article 25 of the Maryland Declaration of Rights. The Court of Appeals of Maryland has “consistently construed [Articles 16, 24, and 25 of the Maryland Declaration of Rights] as being in pari materia with their Federal counterparts.” Evans v. State, 396 Md. 256, 327, 914 A.2d 25, 67 (2006) (alteration added). Defendants’ Motion is styled as a motion to dismiss under Fed. R. Civ. P. 12(b)(6) or, in the alternative, for summary judgment pursuant to Fed. R. Civ. P. 56.15 Defendants submitted several exhibits, totaling over 80 pages in length, with their Motion. These include declarations,
15 Defendants also move to dismiss under Rule 12(b)(1). However, they do not address Rule 12(b)(1) in their 65-page memorandum. Because defendants have not pursued their Rule 12(b)(1) contention, I decline to address it.
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evidence regarding recently promulgated regulations, and information regarding the early release of five persons who received life sentences for offenses committed as juveniles.
A motion styled in this manner implicates the court's discretion under Rule 12(d) of the Federal Rules of Civil Procedure. See Kensington Vol. Fire Dep't, Inc. v. Montgomery Cty, 788 F. Supp. 2d 431, 436-37 (D. Md. 2011). Ordinarily, a court “is not to consider matters outside the pleadings or resolve factual disputes when ruling on a motion to dismiss.” Bosiger v. U.S. Airways, 510 F.3d 442, 450 (4th Cir. 2007). However, under Rule 12(b)(6), a court, in its discretion, may consider matters outside of the pleadings, pursuant to Rule 12(d). If the court does so, “the motion must be treated as one for summary judgment under Rule 56,” but “[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.” Fed. R. Civ. P. 12(d); see Adams Housing, LLC v. The City of Salisbury, Md., ___ Fed. Appx. ____, 2016 WL 6958439, at *2-3 (4th Cir. Nov. 29, 2016) (per curiam). When the movant expressly captions its motion “in the alternative” as one for summary judgment, and submits matters outside the pleadings for the court's consideration, the parties are deemed to be on notice that conversion under Rule 12(d) may occur; the court “does not have an obligation to notify parties of the obvious.” Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 261 (4th Cir. 1998).
A district judge has “complete discretion to determine whether or not to accept the submission of any material beyond the pleadings that is offered in conjunction with a Rule 12(b)(6) motion and rely on it, thereby converting the motion, or to reject it or simply not consider it.” 5 C Wright & Miller, FEDERAL PRACTICE & PROCEDURE § 1366, at 159 (3d ed. 2004, 2011 Supp.). This discretion “should be exercised with great caution and attention to the parties' procedural rights….” Id. at 149. In general, courts are guided by whether consideration of
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extraneous material “is likely to facilitate the disposition of the action[]” and “whether discovery prior to the utilization of the summary judgment procedure” is necessary. Id. at 165-67.
Ordinarily, summary judgment is inappropriate “where the parties have not had an opportunity for reasonable discovery.” E.I. du Pont de Nemours and Co. v. Kolon Industries, Inc., 637 F.3d 435, 448-49 (4th Cir. 2012); see Putney v. Likin, 656 Fed. Appx. 632, 638-640 (4th Cir. 2016) (per curiam); McCray v. Maryland Dep't of Transp., 741 F.3d 480, 483 (4th Cir. 2015). However, “the party opposing summary judgment ‘cannot complain that summary judgment was granted without discovery unless that party has made an attempt to oppose the motion on the grounds that more time was needed for discovery.’” Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 244 (4th Cir. 2002) (quoting Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 961 (4th Cir. 1996)). To raise adequately the issue that discovery is needed, the non-movant typically must file an affidavit or declaration pursuant to Rule 56(d) (formerly Rule 56(f)), explaining why, “for specified reasons, it cannot present facts essential to justify its opposition,” without needed discovery. Fed. R. Civ. P. 56(d); see Harrods, 302 F.3d at 244-45 (discussing affidavit requirement of former Rule 56(f)).
“[T]o justify a denial of summary judgment on the grounds that additional discovery is necessary, the facts identified in a Rule 56 affidavit must be ‘essential to [the] opposition.’” Scott v. Nuvell Fin. Servs., LLC, 789 F. Supp. 2d 637, 641 (D. Md. 2011) (alteration in original) (citation omitted). A non-moving party's Rule 56(d) request for additional discovery is properly denied “where the additional evidence sought for discovery would not have by itself created a genuine issue of material fact sufficient to defeat summary judgment.” Strag v. Bd. of Trs., Craven Cmty. Coll., 55 F.3d 943, 954 (4th Cir. 1995); see Amirmokri v. Abraham, 437 F. Supp.
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2d 414, 420 (D. Md. 2006), aff'd, 266 Fed. Appx. 274 (4th Cir.), cert. denied, 555 U.S. 885
(2008).
Plaintiffs contend that conversion to summary judgment is inappropriate because they
have not had an opportunity for discovery. ECF 35 at 35-38. In support of their contention,
plaintiffs have submitted the Declaration of Barry J. Fleishman, Esquire, under Rule 56(d). See
ECF 35-1 (Fleishman Declaration). Mr. Fleishman, who is co-counsel for plaintiffs, avers, in
part, id. ¶ 6:
6. To oppose Defendants’ Motion, Plaintiffs need to undertake discovery…regarding numerous topics, including, for example and without limitation:
• The reasoning, intent, and administrative and regulatory history behind Defendants’ new rules, regulations and procedures for juvenile offenders serving life sentences;
• The implementation and impact of current and former classification systems for juvenile offenders serving life sentences upon their opportunities for release, as well as the availability of administrative remedies to address classification outcomes;
• The scope of Defendants’ reliance upon risk assessment tools to make determinations about opportunities for release, as well as other policies and practices of the Maryland Parole Commission;
• The history of parole proceedings (including the number of individuals recommended for parole, set-offs and refusals) for juvenile offenders serving life sentences since at least 1995;
• The history of clemency proceedings (including the number of individuals recommended by the MPC for commutation) for juvenile offenders serving life sentences since at least 1995;
• The history of gubernatorial grants and denials of parole for juvenile offenders serving life sentences since at least 1995;
• The facts and circumstances of the conditional commutations of John Alexander Jones, Mark Farley Grant, Mary Washington Brown, Karen Lynn Fried, and the medical parole of Milton Humphrey
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Although it may not be necessary for plaintiffs to explore each of their proposed discovery topics, I agree that plaintiffs are entitled to conduct discovery relevant to their claims. A party “needs an ‘adequate opportunity’ to present its case and ‘demonstrate a genuine issue of material fact.’” Adams Housing, LLC, 2016 WL 6958439, at *2. As the Fourth Circuit stated in McCray, 741 F.3d at 483, “Summary judgment before discovery forces the non-moving party into a fencing match without a sword or mask.” And, I note that in cases raising similar claims, discovery has been conducted. See, e.g., Hayden v. Keller, 134 F. Supp. 3d 1000, 1004 (E.D.N.C. 2015) (determining, after discovery, that the procedures of the North Carolina Parole Commission failed to provide juvenile offender sentenced to life with parole a meaningful opportunity to obtain release that Graham requires), appeal dismissed sub nom. Hayden v. Butler, 15-7676, 2016 WL 4073275 (4th Cir. Aug. 1, 2016).
Moreover conversion to summary judgment is inappropriate because of the significant claims at issue, which have not been adequately considered. In Greiman v. Hodges, 79 F. Supp. 3d 933, 946 (S.D. Iowa 2015), a § 1983 case brought pursuant to Graham, the court concluded that “discovery and full consideration of the case on the merits [was] warranted” because the plaintiff had “asserted important constitutional claims which present issues of first impression[.]” See, e.g., Wershe v. Combs, 763 F.3d 500, 505-06 (6th Cir. 2014), (vacating dismissal of Eighth Amendment claim in light of “novelty” of the claim); McGary v. City of Portland, 386 F.3d 1259, 1270 (9th Cir. 2004) (“‘Court[s] should be especially reluctant to dismiss on the basis of the pleadings when the asserted theory of liability is novel or extreme, since it is important that new legal theories be explored and assayed in the light of actual facts rather than a pleader's suppositions.’” (quoting 5 Wright & Miller, § 1357, at 601–03); Igartua–De La Rosa v. United States, 417 F.3d 145, 192 (1st Cir. 2005) (same).
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Accordingly, I decline to convert the Motion to one for summary judgment. Instead, I shall construe it as a motion to dismiss.
Under Rule 12(b)(6), a defendant may test the legal sufficiency of a complaint. Goines v. Valley Cmty, Servs, Bd., 822 F.3d 159, 165-66 (4th Cir. 2016); McBurney v. Cuccinelli, 616 F.3d 393, 408 (4th Cir. 2010), aff'd sub nom. McBurney v. Young, ___ U.S. ____, 133 S. Ct. 1709 (2013); Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). A Rule 12(b)(6) motion constitutes an assertion by a defendant that, even if the facts alleged by a plaintiff are true, the complaint fails as a matter of law “to state a claim upon which relief can be granted.”
Whether a complaint states a claim for relief is assessed by reference to the pleading requirements of Fed. R. Civ. P. 8(a)(2). It provides that a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” The purpose of the rule is to provide the defendants with “fair notice” of the claims and the “grounds” for entitlement to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).
To survive a motion under Fed. R. Civ. P. 12(b)(6), a complaint must contain facts sufficient to “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570; see Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (“Our decision in Twombly expounded the pleading standard for ‘all civil actions’ . . . .” (citation omitted)); see also Simmons v. United Mortg. & Loan Inv., LLC, 634 F.3d 754, 768 (4th Cir. 2011). But, a plaintiff need not include “detailed factual allegations” in order to satisfy Rule 8(a)(2). Twombly, 550 U.S. at 555. Moreover, federal pleading rules “do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted.” Johnson v. City of Shelby, ___ U.S. ____, 135 S. Ct. 346, 346 (2014) (per curiam).
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Nevertheless, the rule demands more than bald accusations or mere speculation. Twombly, 550 U.S. at 555; see Painter's Mill Grille, LLC v. Brown, 716 F.3d 342, 350 (4th Cir. 2013). If a complaint provides no more than “labels and conclusions” or “a formulaic recitation of the elements of a cause of action,” it is insufficient. Twombly, 550 U.S. at 555. Rather, to satisfy the minimal requirements of Rule 8(a)(2), the complaint must set forth “enough factual matter (taken as true) to suggest” a cognizable cause of action, “even if . . . [the] actual proof of those facts is improbable and . . . recovery is very remote and unlikely.” Id. at 556 (internal quotations omitted).
In reviewing a Rule 12(b)(6) motion, a court “‘must accept as true all of the factual allegations contained in the complaint’” and must “‘draw all reasonable inferences [from those facts] in favor of the plaintiff.’” E.I. du Pont de Nemours & Co., 637 F.3d at 440 (citations omitted); see Houck v. Substitute Tr. Servs., Inc., 791 F.3d 473, 484 (4th Cir. 2015); Kendall v. Balcerzak, 650 F.3d 515, 522 (4th Cir. 2011), cert. denied, ___ U.S. ____, 132 S. Ct. 402 (2011); Monroe v. City of Charlottesville, 579 F.3d 380, 385-86 (4th Cir. 2009), cert. denied, 559 U.S. 992 (2010). But, a court is not required to accept legal conclusions drawn from the facts. See Papasan v. Allain, 478 U.S. 265, 286 (1986). “A court decides whether [the pleading] standard is met by separating the legal conclusions from the factual allegations, assuming the truth of only the factual allegations, and then determining whether those allegations allow the court to reasonably infer” that the plaintiff is entitled to the legal remedy sought. A Society Without a Name v. Virginia, 655 F.3d 342, 346 (4th.Cir. 2011), cert. denied, ___ U.S. ____, 132 S. Ct. 1960 (2012).
In general, courts do not “resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses” through a Rule 12(b)(6) motion. Edwards, 178 F.3d at 243. The
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purpose of the rule is to ensure that defendants are “given adequate notice of the nature of a claim” made against them. Twombly, 550 U.S. at 555–56 (2007). But, “in the relatively rare circumstances where facts sufficient to rule on an affirmative defense are alleged in the complaint, the defense may be reached by a motion to dismiss filed under Rule 12(b)(6).” Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007) (en banc); accord Leichling, supra, at *2;Pressley v. Tupperware Long Term Disability Plan, 533 F.3d 334, 336 (4th Cir. 2009); see also U.S. ex rel. Oberg v. Penn. Higher Educ. Assistance Agency, 745 F.3d 131, 148 (4th Cir. 2014). However, because Rule 12(b)(6) “is intended [only] to test the legal adequacy of the complaint,” Richmond, Fredericksburg & Potomac R.R. Co. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993), “[t]his principle only applies ... if all facts necessary to the affirmative defense ‘clearly appear[ ] on the face of the complaint.’” Goodman, 494 F.3d at 464 (quoting Forst, 4 F.3d at 250) (emphasis added in Goodman).
V. Relevant Precedent In the past few decades, the Supreme Court has issued several decisions recognizing that “the Eighth Amendment dramatically limits the imposition of the harshest sentences on juvenile offenders.” Greiman, supra, 79 F. Supp. 3d at 939. A review of these decisions provides a framework for analysis of the issues in this case. In Thompson v. Oklahoma, 487 U.S. 815 (1988), a plurality of the Court concluded that evolving standards of decency prohibit a death sentence for persons who were under the age of sixteen at the time of the offense. In Roper v. Simmons, 543 U.S. 551 (2005), the Supreme Court expanded its holding to individuals under age eighteen at the time of the offense. In reaching its conclusion, the Court explained that juveniles differ from adults in three fundamental ways: (1) they possess a “lack of maturity and an underdeveloped sense of responsibility” that “often
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result[s] in impetuous and ill-considered actions and decisions”; (2) they are “more vulnerable or susceptible to negative influences and outside pressures, including peer pressure”; and (3) “the character of a juvenile is not as well formed as that of an adult.” Id. at 569–71 (internal citations and quotation marks omitted). According to the Roper Court, “[t]hese differences render suspect any conclusion that a juvenile falls among the worst offenders.” Id. at 570.
Further, the Roper Court said, id. (internal quotations and citations omitted): [I]t is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character. From a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor's character deficiencies will be reformed. Indeed, the relevance of youth as a mitigating factor derives from the fact that the signature qualities of youth are transient; as individuals mature, the impetuousness and recklessness that may dominate in younger years can subside. Then, in Graham v. Florida, 560 U.S. 48 (2010), the Supreme Court considered a life sentence imposed on a juvenile in Florida for the offense of armed burglary. Because Florida had abolished its parole system, a life sentence meant that the defendant had no possibility for release unless he was granted executive clemency. Id. at 57. The Court determined that “none of the goals of penal sanctions that have been recognized as legitimate—retribution, deterrence, incapacitation, and rehabilitation—provides an adequate justification” for a sentence of life without parole for a juvenile nonhomicide offender. Id. at 71; see also id. at 71-74. The Court emphasized that a sentence of life without parole “alters the offender's life by a forfeiture that is irrevocable. It deprives the convict of the most basic liberties without giving hope of restoration, except perhaps by executive clemency—the remote possibility of which does not mitigate the harshness of the sentence.” Id. at 69-70 (citing Solem, supra, 463 U.S. at 300-301). The Graham Court concluded that the Eighth Amendment prohibits the imposition of a life sentence without parole for nonhomicide offenses committed by juvenile offenders. Id. at 74.
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In articulating the constitutional requirements for juvenile offenders in such circumstances, the
Court said, 560 U.S. at 75 (emphasis added):
A State is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime. What the State must do, however, is give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. It is for the State, in the first instance, to explore the means and mechanisms for compliance. It bears emphasis, however, that while the Eighth Amendment forbids a State from imposing a life without parole sentence on a juvenile nonhomicide offender, it does not require the State to release that offender during his natural life. Those who commit truly horrifying crimes as juveniles may turn out to be irredeemable, and thus deserving of incarceration for the duration of their lives. The Eighth Amendment does not foreclose the possibility that persons convicted of nonhomicide crimes committed before adulthood will remain behind bars for life. It does forbid States from making the judgment at the outset that those offenders never will be fit to reenter society.
The Court added, id. at 82:
The Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide. A State need not guarantee the offender eventual release, but if it imposes a sentence of life it must provide him or her with some realistic opportunity to obtain release before the end of that term.
Two years later, the Supreme Court decided Miller v. Alabama, 567 U.S.___, 132 S. Ct.
2455 (2012), in which it held that, even in homicide cases, the Eighth Amendment forbids
subjecting a juvenile to a mandatory sentence of life imprisonment without parole. Id.at 2469.
The Court explained, id. at 2467: “Such mandatory penalties, by their nature, preclude a
sentencer from taking account of an offender's age and the wealth of characteristics and
circumstances attendant to it.” Thus, a sentence of life without parole for a juvenile convicted of
homicide may be imposed only after the court has the opportunity to consider all the mitigating
circumstances, including the offender’s age and age-related characteristics. Id. at 2475; see also
id. at 2469 (requiring the sentencer “to take into account how children are different, and how
those differences counsel against irrevocably sentencing them to a lifetime in prison.[]”). The
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Supreme Court emphasized that, “given…children's diminished culpability and heightened

capacity for change…appropriate occasions for sentencing juveniles to this harshest possible

penalty will be uncommon,” and reserved for “the rare juvenile offender whose crime reflects

irreparable corruption.” Id. at 2469.

Most recently, in 2016, the Supreme Court determined in Montgomery v. Louisiana,

___U.S.___, 136 S. Ct. 718 (2016), that “Miller announced a substantive rule of Constitutional

law,” which applies retroactively. Id. at 734. As the Supreme Court put it, that rule “bar[red]

life without parole…for all but the rarest of juvenile offenders, those whose crimes reflect

permanent incorrigibility.” Id. The Court reasoned, id. (citations omitted):

Miller . . . did more than require a sentencer to consider a juvenile offender's youth before imposing life without parole; it established that the penological justifications for life without parole collapse in light of “the distinctive attributes of youth.” Even if a court considers a child's age before sentencing him or her to a lifetime in prison, that sentence still violates the Eighth Amendment for a child whose crime reflects “‘unfortunate yet transient immaturity.’” Because Miller determined that sentencing a child to life without parole is excessive for all but “‘the rare juvenile offender whose crime reflects irreparable corruption,’” it rendered life without parole an unconstitutional penalty for “a class of defendants because of their status”—that is, juvenile offenders whose crimes reflect the transient immaturity of youth.

Notably, the Court expressed concern that “Miller's conclusion that the sentence of life

without parole is disproportionate for the vast majority of juvenile offenders raises a grave risk

that many are being held in violation of the Constitution.” Id.at 736. The Court concluded that

juvenile offenders sentenced in violation of Miller “must be given the opportunity to show their

crime did not reflect irreparable corruption; and if it did not, their hope for some years of life

outside prison walls must be restored.” Id. at 736–37.

Of import here, the Court expressly said, id. at 736: “A State may remedy a Miller

violation by permitting juvenile homicide offenders to be considered for parole, rather than by

resentencing them.” The Court added, id.:

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Allowing those offenders to be considered for parole ensures that juveniles whose crimes reflected only transient immaturity—and who have since matured—will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment…Those prisoners who have shown an inability to reform will continue to serve life sentences. The opportunity for release will be afforded to those who demonstrate the truth of Miller's central intuition—that children who commit even heinous crimes are capable of change.
VI. Discussion A. Whether federal claims are properly brought under § 1983 Defendants assert that plaintiffs’ federal claims (i.e., counts one and three) are not cognizable under § 1983. ECF 23-1 at 17. Relying on Heck v. Humphrey, 512 U.S. 477, 481, 487 (1994), defendants contend that an application for a writ of habeas corpus under 28 U.S.C. § 2254 is the exclusive remedy for state prisoners who challenge the fact or duration of their confinement and seek an immediate or speedier release from prison. The Supreme Court has “held that a prisoner in state custody cannot use a § 1983 action to challenge ‘the fact or duration of his confinement.’ He must seek federal habeas corpus relief (or appropriate state relief) instead.” Wilkinson v. Dotson, 544 U.S. 74, 78 (2005) (citations omitted) (explaining Heck and quoting Preiser v. Rodriguez, 411 U.S. 475, 489 (1973)); see also Edwards v. Balisok, 520 U.S. 641, 643 (1997) (noting that the Heck Court held that “a state prisoner's claim for damages is not cognizable under 42 U.S.C. § 1983 if ‘a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence[.]’”) (quoting Heck, 512 U.S. at 487). The Heck bar applies to a state prisoner’s § 1983 action “no matter the relief sought (damages or equitable relief), no matter the target of the prisoner's suit (state conduct leading to conviction or internal prison proceedings)—if success in that action would necessarily demonstrate the invalidity of confinement or its duration.” Wilkinson, 544 U.S. at 81–82 (emphasis in original).
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In Wilkinson, 544 U.S. 74, two state prisoners challenged state parole procedures under § 1983, and the Court deemed the § 1983 claim cognizable. Id. at 82. The Court noted that the prisoners were not seeking “an injunction ordering [their] immediate or speedier release into the community.” Id. Rather, if successful, the prisoners would obtain quicker or new parole hearings, and the parole board would have discretion whether or not to shorten the prisoners' terms. Id. “Because neither prisoner's claim would necessarily spell speedier release,” the Court concluded that § 1983 relief was available. Id.
Notably, in Montgomery the Supreme Court recognized that a violation of Miller could be remedied without a resentencing. 136 S. Ct. at 736. It said, id.: “Giving Miller retroactive effect…does not require States to relitigate sentences, let alone convictions, in every case where a juvenile offender received mandatory life without parole.” Further, it added: “A State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole . . . .” Id.
In Count One of the Complaint, plaintiffs do not attack their convictions or their sentences. Rather, pursuant to § 1983, they allege that Maryland’s system of parole does not provide them with a realistic and meaningful opportunity for release, in violation of the Eighth Amendment. ECF 1, ¶¶ 167-173. Moreover, a court could conclude that Maryland’s parole scheme is unconstitutional without determining that plaintiffs’ convictions or sentences are invalid. “Success in this [claim] does not necessarily mean that Plaintiffs will obtain a speedier release from prison.” Hill v. Snyder, No. 10-14568, 2011 WL 2788205, at *5 (E.D. Mich. July 15, 2011); see also Wershe, 763 F.3d at 504 (claims cognizable under § 1983 where prisoner “does not seek direct release from prison or a shorter sentence; he seeks a change in the
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procedures used to determine whether he is eligible for parole.”). Accordingly, Count One is cognizable under § 1983.
In their third count, plaintiffs seek a declaratory judgment that C.L. § 2-201(b) is unconstitutional as applied to individuals who were juveniles at the time of their offenses, because it mandates life sentences in all cases of first-degree murder. ECF 1, ¶¶ 181-185.16 The Named Plaintiffs, as well as many MRJI members, were sentenced pursuant to this statute. Id. ¶¶ 8, 65, 185. The claim is based on both federal and State law. See id. ¶ 185 (“Plaintiffs…have been injured by sentencing pursuant to Section 2-201(b)…in violation of the Eighth Amendment…and Article 25 of the Maryland Declaration of Rights.). Notably, the statute does not mandate a sentence of life without parole. Nor does it prohibit the suspension of any portion of the sentence. See, e.g., Cathcart v. State, 397 Md. 320, 328, 916 A.2d 1008, 1013 (2007).
To the extent that Count 3 is based on federal law, defendants assert that the claim is not cognizable under § 1983. ECF 23-1 at 17. A declaration that C.S. § 2-201(b) is unconstitutional as applied to individuals who were juveniles at the time of their offenses “would necessarily imply the invalidity of [plaintiffs’] . . . sentence[s.]” Heck, 512 U.S. at 487. But, under Heck,
16 C.L. § 2-201(b) states: (b)(1) A person who commits a murder in the first degree is guilty of a felony and on conviction shall be sentenced to: (i) imprisonment for life without the possibility of parole; or (ii) imprisonment for life. (2) Unless a sentence of imprisonment for life without the possibility of parole is imposed in compliance with § 2-203 of this subtitle and § 2-304 of this title, the sentence shall be imprisonment for life.
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512 U.S. 477, a § 1983 action is not the proper vehicle for such a challenge. Therefore, to the extent that Count 3 asserts a claim under federal law, it is not cognizable.
As to the State law claim in Count 3, defendants have not addressed the applicability of Heck. Nevertheless, plaintiffs have failed to raise a plausible claim that C.L. § 2-201(b) violates Article 25 of the Maryland Declaration of Rights.
Plaintiffs have cited no authority for the proposition that a mandatory sentence of life imprisonment, with parole, for a Juvenile Offender is inherently unconstitutional under Article 25 or the Eighth Amendment. Rather, as discussed, infra, a constitutional issue arises if, after the imposition of a life sentence, the Juvenile Offender is not provided with a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Graham, 560 U.S. at 75.
The Court of Appeals of Maryland has consistently construed Article 25 of the Maryland Declaration of Rights as being in pari materia with its federal counterpart. Evans, 396 Md. at 327, 914 A.2d at 67. Therefore, plaintiffs have failed to raise a plausible claim that C.L. § 2201(b) violates the Maryland Declaration of Rights.
Accordingly, I shall dismiss Count 3 of the Complaint. B. Statute of limitations
There is no federal statute of limitations for § 1983 claims. Lewis v. Richmond City Police Dep't., 947 F.2d 733, 735 (4th Cir. 1991). Therefore, the applicable State limitations period applies. Id; see Wilkins v. Montgomery, 751 F.3d 214, 223 (4th Cir. 2014) (“There is no federal statute of limitations for § 1983 claims, so the state limitations period which governs personal injury actions is applied[.]”) (Internal citation omitted); see also Abeles v. Metro. Washington Airports Auth., __Fed. App’x__, 2017 WL 374741, at *6 (4th Cir. Jan. 26, 2017)
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(unpublished) (“Because § 1983 does not contain an express statute of limitations, we use state statutes of limitations.”) Under Maryland law, the general limitations period is three years. See Maryland Code (2013 Repl. Vol.), § 5–101 of the Courts and Judicial Proceedings Article.
In their Motion to Dismiss, defendants maintain that plaintiffs’ claims are barred by the applicable three-year statute of limitations. Defendants contend that plaintiffs’ claims accrued as early as 1995, when then-Governor Glendening announced that he “did not intend to grant parole to anyone serving a life sentence…” ECF 23-1 at 34. Plaintiffs counter, inter alia, that their claims are not time-barred, because they have satisfied the “continuing violation” exception to accrual. ECF 35 at 22.
A statute of limitations is ordinarily considered “an affirmative defense, meaning that the defendant generally bears the burden of affirmatively pleading its existence.” Eriline Co. S.A. v. Johnson, 440 F.3d 648, 653 (4th Cir. 2006). As noted, a “motion to dismiss filed under Fed. R. Civ. P. 12(b)(6) ordinarily “cannot reach the merits of an affirmative defense.” Goodman, 494 F.3d at 464. Rather, an affirmative defense can be resolved by way of a Rule 12(b)(6) motion only “in the relatively rare circumstances where . . . all facts necessary to the affirmative defense ‘clearly appear[ ] on the face of the complaint.’” Id. (quoting Forst, 4 F.3d at 250) (emphasis in Goodman).
In my view, it is not clear from the face of the Complaint that plaintiffs’ claims are timebarred. ECF 1, ¶ 16. The Complaint does not specify whether members of MRJI were sentenced in the past three years to life imprisonment for crimes committed as juveniles. And, whether plaintiffs have demonstrated a continuing violation is a fact-specific inquiry that, in my view, is premature to address at this stage of litigation. See generally Nat'l Advert. Co. v. City of Raleigh,
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947 F.2d 1158, 1167 (4th Cir. 1991). Accordingly, the affirmative defense of limitations does not provide a basis for dismissal.
C. Administrative Exhaustion Defendants argue that plaintiffs’ claims against the DOC are barred by the mandatory exhaustion provision of the Prison Litigation Reform Act of 1995 (“PLRA”), 110 Stat. 1321-71, as amended, 42 U.S.C. § 1997e(a). ECF 23-1 at 64. The PLRA provides, in pertinent part, 42 U.S.C. § 1997e: (a) Applicability of administrative remedies No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted. For purposes of the PLRA, “the term ‘prisoner’ means any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program.” 42 U.S.C. § 1997e(h). The phrase “prison conditions” encompasses all prisoner suits about prison life, “whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002); see Chase v. Peay, 286 F. Supp. 2d 523, 528 (D. Md. 2003), aff'd, 98 Fed. App’x. 253 (4th Cir. 2004). Plaintiffs’ claims include a challenge to the DOC’s security classification directives. As discussed, plaintiffs claim that the automatic classification of all Juvenile Offenders to maximum security upon commitment to DOC, and the categorical bar for lifers to progress below medium
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security, denies Juvenile Offenders the opportunity to advance through the DOC system so as to
demonstrate their maturity and rehabilitation. ECF 1, ¶ 62. Plaintiffs assert, id. ¶ 92:
In the DOC, security classifications determine virtually all aspects of an individual’s conditions of confinement. An individual’s security classification determines in which institutions he or she may be housed, the level of restriction upon his or her freedom of movement, and all aspects of programmatic eligibility, including access to treatment, training, and employment.
DPSCS has made an “administrative remedy procedure” available to Maryland State
prisoners, within the meaning of 42 U.S.C. § 1997e(a), for the submission of “grievance[s]
against....official[s] or employee[s] of the Division of Correction.” C.S. § 10-206(a); see
generally C.S. §§ 10-201 et seq.; COMAR 12.07.01.01(B)(1) (defining administrative remedy
procedure, “ARP”). Regulations promulgated by DPSCS concerning the administrative remedy
procedure define a “grievance” to include a “complaint of any individual in the custody of the
[DOC]... against any officials or employees of the [DOC]...arising from the circumstances of
custody or confinement.” COMAR 12.07.01.01B(8).17 An inmate “must exhaust” the ARP
17 Maryland appellate case law indicates that the administrative grievance procedure does not encompass “‘every kind of civil matter that could be brought by a DOC inmate.’” Massey v. Galley, 392 Md. 634, 646, 898 A.2d 951, 958 (2006) (citation omitted). Rather, it applies only to matters that “relate to or involve a prisoner's ‘conditions of confinement.’” Id. at 651, 898 A.2d at 960 (citation omitted). Thus, the grievance procedure does not apply to requests for public information under the Maryland Public Information Act, see id., nor does it apply to medical malpractice claims against private medical service providers who treat inmates under contract with the DOC. See Abramson v. Correctional Med. Servs., Inc., 359 Md. 238, 753 A.2d 501 (2000). Nor does the administrative grievance procedure apply to claims for compensation for disabilities resulting from “personal injury arising out of and in the course of [an inmate's] work for which wages or a stipulated sum of money was paid by a correctional facility,” C.S. § 10304, for which a claim to a different administrative body, the Sundry Claims Board, is the exclusive remedy. See Dixon v. DPSCS, 175 Md. App. 384, 927 A.2d 445 (2007).
On the other hand, the grievance process does apply to a wide variety of claims that arise out of the conditions of confinement, even if the grievance process cannot provide a comprehensive remedy for such claims. These include claims of assault and battery against prison officers. See McCullough v. Wittner, 314 Md. 602, 552 A.2d 881 (1989).
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process as a condition precedent to further review of the inmate's grievance. See C.S. § 10206(b); see also COMAR 12.07.01.02.D; DCD 185-002 (effective August 27, 2008). Exhaustion requires completion of “the administrative review process in accordance with the applicable procedural rules, including deadlines.” Woodford v. Ngo, 548 U.S. 81, 88, 93 (2006).
Defendants cite Watkins v. Sec'y, Dep't of Pub. Safety & Corr. Servs., 377 Md. 34, 831 A.2d 1079 (2003), for the proposition that security classifications are grievable. In that case, inmates challenged whether revised DOC security classifications constituted ex post facto laws after the Inmate Grievance Office dismissed their grievances. The Maryland Court of Appeals held that the new security directives did not violate ex post facto laws, because they were guidelines, not laws, properly promulgated by the Commissioner of DOC. Id. at 45, 831 A.2d at 1086. However, the Maryland Court of Appeals was not asked to consider whether a challenge to a security classification amounts to a “condition of confinement” and thus within the definition of a “grievance” subject to Maryland's administrative remedy procedure.
In any event, MRJI is clearly not a “prisoner” under the statute. As MRJI is not a “person” and has neither been incarcerated nor detained, the exhaustion provisions of the PLRA do not apply to MRJI.
The Named Plaintiffs argue that defendants’ “PLRA exhaustion argument is premature at the Motion to Dismiss stage.” ECF 35 at 39. They also seek to demonstrate that “there is no available remedy to individual plaintiffs for grieving the classification decisions and practices challenged here. Plaintiffs believe that they would be able to discover evidence demonstrating that Defendants’ own policies reflect that issues pertaining to classification cannot be grieved, as would Defendants’ staff.” ECF 35 at 41. See Ross v. Blake, ___ U.S. ____, 136 S. Ct. 1850, 1855 (2016) (noting that a prisoner need only exhaust “available” remedies) (quoting 42 U.S.C.
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§ 1997e(a)); see also Moore v. Bennette, 517 F. 3d 717, 725 (4th Cir. 2008) (“[A]n administrative remedy is not considered to have been available if a prisoner”, through no fault of his own, was prevented from availing himself of it.”)
Administrative exhaustion under § 1997e(a) is not a jurisdictional requirement and does not impose a heightened pleading requirement on the prisoner. Rather, the failure to exhaust administrative remedies is an affirmative defense to be pleaded and proven by a defendant. See Jones v. Bock, 549 U.S. 199, 215-216 (2007); Anderson v. XYZ Correctional Health Services, Inc., 407 F.3d 674, 682 (4th Cir. 2005). In Bock, 549 U.S. 199, the Supreme Court made clear that “inmates are not required to specially plead or demonstrate exhaustion in their complaints.” Id. at 216.
As noted, a Rule 12(b)(6) motion tests the adequacy of a plaintiff's pleading. Typically, such a motion “does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses,” Edwards, 178 F.3d at 243 (internal quotation marks omitted), unless such a defense can be resolved on the basis of the facts alleged in the complaint. To be sure, the Jones Court recognized that dismissal for failure to exhaust administrative remedies may be appropriate if the “allegations in the complaint suffice to establish that ground.” 549 U.S. at 215. But, that will be the unusual case, because “the burden of pleading exhaustion in a case covered by the PLRA” is not placed “on the prisoner.” Id. at 211; accord Anderson, 407 F.3d at 682 (“While it seems unlikely that the failure to exhaust administrative remedies will often be apparent from the face of a complaint, it is certainly possible that a complaint may clearly show that an inmate has not exhausted his administrative remedies.”).
Here, defendants do not suggest that the allegations in the Complaint establish that plaintiffs have failed to exhaust their administrative remedies. To the contrary, defendants rely
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on an exhibit to their Motion, the Declaration of Marci Jones, an Administrative Aide with the Inmate Grievance Office, who asserts that the Named Plaintiffs have not filed any grievances. See ECF 23-5. But, in connection with a Rule 12(b)(6) motion, a court may only consider “matters outside the pleadings.” Therefore, I may not consider the Jones Declaration.
Dismissal is not appropriate here under Rule 12(b)(6) based on defendants’ claim of failure to exhaust administrative remedies.
D. Failure to State a Claim In sum, defendants’ contention that the Complaint fails to state a claim upon which relief may be granted encompasses two issues: 1) whether, as a matter of law, the holdings of Graham, Miller, and Montgomery are limited to “criminal sentencings, rather than parole proceedings,” and thus “do not apply to plaintiffs…” (ECF 23-1 at 47, 42), and 2) whether the allegations contained in the Complaint present a plausible claim that plaintiffs have been denied a meaningful opportunity for parole. Id. at 51.
1. Whether Graham, Miller, and Montgomery apply to parole proceedings Defendants argue that, as a matter of law, the holdings of Graham, Miller, and Montgomery do not apply to plaintiffs, “none of [whom] received a sentence of life without the possibility of parole…” Id. at 49. They maintain that Montgomery, Miller, and Graham “address the ‘sentencer’s ability’ to make the judgment in a homicide case that a defendant should never be eligible for parole…’” Id. at 46 (citation omitted) (emphasis in ECF 23-1). But, they argue that these cases have no applicability beyond sentencings. ECF 23-1 at 42. In their view, the “limitation of the holding in these cases to criminal sentencings, rather than parole proceedings, is consistent with well-settled precedent that the granting or denying of parole is an executive decision, the merits of which are not subject to review by the Court.” Id. at 47.
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Plaintiffs counter that Graham, Miller, and Montgomery apply here, given their claim that, “rather than a system of parole, Defendants operate a system that functions in practice as a system of clemency which denies juvenile lifers a meaningful opportunity for release.” ECF 35 at 27.
Several courts have rejected the argument that Graham has no applicability beyond sentencing. For example, in Greiman, 79 F. Supp. 3d 933, a juvenile nonhomicide offender was originally sentenced to life without parole but, after Graham, he was resentenced to life with parole. Thereafter, he brought a § 1983 suit, contending that the Iowa parole board “failed to provide him a ‘meaningful opportunity for parole’ when [it] summarily denied him parole based solely on the seriousness of his offense and failed entirely to ‘take into account [Plaintiff's] youth and demonstrated maturity and rehabilitation as required under the new constitutional and statutory mandates.’” Id. at 936 (citation omitted) (last bracket in original).
The plaintiff also complained about the Iowa Department of Corrections “policy that requires him to take sex offender classes before he can be released on parole, but only permits inmates with less than two years before discharge to take such classes….Thus, since Plaintiff does not have a defined discharge date, he has been denied permission to enroll in sex offender classes, and in turn, cannot fulfill the necessary steps to obtain parole.” Id. According to the plaintiff, the policy depriving him of sex offender treatment amounted to a de facto denial of his right to a meaningful opportunity for release. Id.
The defendants argued, as they do here, that “Graham…is inapplicable to ‘release or parole considerations.’” Id. at 942 (citation omitted). The Greiman Court “disagree[d] with Defendants that Graham has no applicability outside the context of a juvenile's initial sentencing.” Id. at 943. The court explained, id.: (emphasis and alterations in Greiman):
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While Defendants are correct that the State has no obligation to guarantee Plaintiff release during his lifetime, Graham explicitly held that, “[w]hat the State must do...is give [juvenile nonhomicide offenders] some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Graham, 560 U.S. at 75, 130 S. Ct. 2011. It is axiomatic that a juvenile offender could only prove increased maturity and rehabilitation warranting release from custody at some time well after a sentence is imposed. The Greiman Court recognized that, under the facts alleged, “the responsibility for ensuring that Plaintiff receives his constitutionally mandated ‘meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation’ lies squarely with [the parole board].” 79 F. Supp. 3d at 943. Further, the court determined that the plaintiff’s allegations, assumed to be true, “state[d] a plausible § 1983 claim that Defendants, acting under color of state law, have wrongfully deprived and continue to deprive Plaintiff of a ‘meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation,’ thereby violating his right to be free from cruel and unusual punishment under the Federal and State Constitutions.” Id. at 944. The court pointed to allegations that the parole board’s “‘current policies ... fail to take into account...youth at the time of [the] offense and...demonstrated maturity and development.’” Id. (citation omitted). In addition, the court determined that plaintiff presented a plausible § 1983 claim based on allegations that the “policy on participating in sex offender treatment categorically excludes Plaintiff from participation because he does not have a defined discharge date”, that sex offender treatment is required as a condition of parole eligibility, and that “Plaintiff is, in effect, denied not just of a meaningful opportunity for parole; he is denied any opportunity for parole.” Id. at 944 (emphasis in original). Notably, the court concluded, id.: “Considering the current procedural posture…the Court agrees with Plaintiff that he has presented at least a plausible §
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1983 claim that Defendants' policy…results in a de facto life without parole sentence that is prohibited by Graham and its progeny.”
Similarly, in Hayden, 134 F. Supp. 3d 1000, a juvenile nonhomicide offender sentenced to life with parole brought a § 1983 action alleging that the North Carolina Parole Commission (“NCPC”) failed to provide him with a meaningful opportunity for release. Id. at 1001. The court concluded that Graham applies to parole proceedings. Id. at 1009. Significantly, the Hayden Court explained, id.: “If a juvenile offender's life sentence, while ostensibly labeled as one ‘with parole,’ is the functional equivalent of a life sentence without parole, then the State has denied that offender the ‘meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation’ that the Eighth Amendment demands.” The Hayden Court also suggested that Miller-type protections were required at parole proceedings. Id. (concluding that the NCPC “fail[ed] to consider ‘children's diminished culpability and heightened capacity for change’ in their parole reviews.[]”) (quoting Miller, 132 S. Ct. at 2469).
Wershe, 763 F.3d 500, is also informative. There, the prisoner was originally sentenced to life without parole for drug crimes committed as a juvenile. After the Michigan Supreme Court found that sentence unconstitutional, he was resentenced to a “paroleable” life sentence. Id. at 502. The prisoner subsequently brought a § 1983 action against members of the Michigan Parole Board, “alleging that the parole consideration process did not afford him a meaningful opportunity for release,” in violation, inter alia, of the Eighth Amendment. Id. The Sixth Circuit “vacate[d] the portion of the district court’s opinion dismissing Wershe’s Eighth Amendment claim for failure to state a claim and remand[ed]…to the district court.” Id. at 506. The court explained, id. at 505–06:
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Whether Graham applies to an individual in Wershe's position, and what constitutes a constitutionally meaningful and realistic opportunity for parole, are questions of first impression in this circuit.
The district court rejected Wershe's Eighth Amendment claim with no mention of Graham v. Florida, analysis of whether Graham applies to Wershe, or consideration of whether Michigan parole proceedings provide a constitutionally meaningful opportunity for release.…Given the novelty of Wershe's claim and the fact that the parties have not had an opportunity to present briefing, we think it best to permit the parties to further develop their arguments for consideration by the district court in the first instance.
On remand, the district court could not “say with certainty that Graham does not apply to
Wershe merely because his sentence is technically one that gives him the possibility of parole.”
Wershe v. Combs, 1:12-CV-1375, 2016 WL 1253036, at *3 (W.D. Mich. Mar. 31, 2016). The
court found “persuasive” the decisions from “district courts in other circuits [that] have held that
Graham's requirement that states offer juvenile offenders a ‘meaningful opportunity to obtain
release based on demonstrated maturity and rehabilitation,’ extends to juveniles that are
sentenced to life with the possibility of parole.” Id. (citation omitted). The court explained, id.:
“Graham imposed a categorical rule that prohibits states from deciding, at the time of
sentencing, that a juvenile offender will necessarily spend the rest of his life in prison. The
Court's discussion of a meaningful opportunity to obtain release, however, suggests that the decision imposes some requirements after sentencing as well.” (Emphasis added).18
Although the cases cited above were brought by prisoners convicted of nonhomicide
offenses committed when they were juveniles, the reasoning is informative, in light of the
promise in Graham and Montgomery that a meaningful opportunity for release extends to all
juvenile offenders, except for those “whose crimes reflect permanent incorrigibility.”
18 Ultimately, the court determined that it did not need to decide “whether Graham imposes requirements on a parole board” because it determined that the state had provided Wershe with a meaningful opportunity to obtain release. Wershe, 1:12-CV-1375, 2016 WL 1253036, at *3.
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Montgomery, 136 S. Ct. at 734. It is difficult to reconcile the Supreme Court’s insistence that juvenile offenders with life sentences must be afforded a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation”, Graham, 560 U.S. at 75, if the precept does not apply to the parole proceedings that govern the opportunity for release.
Put another way, it is quite unlikely that the requisite “demonstrated maturity and rehabilitation” needed for release would be evident at sentencing. To the contrary, such change would occur, if at all, after sentencing and during incarceration. And, to the extent that such change occurs, the vehicle to recognize it would be parole.
Indeed, the Montgomery Court said, 136 S. Ct. at 736: “The opportunity for release will be afforded to those who demonstrate the truth of Miller's central intuition—that children who commit even heinous crimes are capable of change.” Similarly, the Court said in Graham, 560 U.S. at 79, that the Eighth Amendment “does not permit” a state to deny a juvenile offender “the chance to later demonstrate that he is fit to rejoin society based solely on a nonhomicide crime that he committed while he was a child in the eyes of the law.” (Emphasis added); see also Hawkins v. N.Y. State Dep't of Corr. & Cmty. Supervision, 140 A.D.3d 34, 38, 30 N.Y.S.3d 397, 400 (N.Y. App. Div. 2016) (In a case challenging the denial of parole by a petitioner convicted of a homicide offense as a juvenile, stating: “A parole board is no more entitled to subject an offender to the penalty of life in prison in contravention” of the right to a meaningful opportunity to obtain release “than is a legislature or a sentencing court.”); Greiman, 79 F. Supp. 3d at 943 (“It is axiomatic that a juvenile offender could only prove increased maturity and rehabilitation warranting release from custody at some time well after a sentence is imposed.”)
A recent Fourth Circuit case, LeBlanc v. Mathena, 841 F.3d 256, 261 (4th Cir. 2016), although distinguishable, nonetheless provides strong support for the view that Graham, Miller,
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and Montgomery apply to the allegations here. In LeBlanc, a habeas case under 28 U.S.C. § 2254, the petitioner was sentenced to life imprisonment without parole for the nonhomicide offenses of rape and abduction, which he committed at the age of sixteen, nearly a decade before the Supreme Court decided Graham. Id. at 259. After Graham, the petitioner unsuccessfully sought postconviction relief in the Virginia state courts. Those courts concluded that Virginia's geriatric release program, which allows him to seek release beginning at the age of sixty, “provides the ‘meaningful opportunity’ for release that Graham requires.” Id. In a two-to-one decision, the Fourth Circuit disagreed. It concluded that the petitioner was “entitled to relief from his unconstitutional sentence.” Id. at 260.
Under Virginia’s geriatric release program, an inmate who has reached age 60 must petition the Virginia Parole Board for geriatric release and provide “compelling reasons” for release. Id. During the “Initial Review” stage, the Virginia Parole Board has “unconstrained discretion” to “deny the petition . . . based on a majority vote.” Id. at 262, 261. Virginia law does not specify what constitutes “compelling reasons,” nor does it not “require the Parole Board to consider any particular factors in conducting the Initial Review” or “set forth any criteria” for review of a prisoner’s petition, which may be rejected “for any reason.” Id. at 261-262, 260. “If the Parole Board does not deny a petition at the Initial Review stage, the petition moves forward to the ‘Assessment Review’ stage.” Id. at 262. At this stage, the Parole Board must consider certain “decision factors,” which are enumerated in the Parole Board Policy Manual. Id.
In analyzing the petitioner’s Eighth Amendment claim, the Fourth Circuit articulated that Graham “established at least three minimum requirements for parole or early release programs for juvenile nonhomicide offenders sentenced to life imprisonment…” Id. at 266 (emphasis added); see also id. at 268 n. 6 (“[E]ven Respondents concede that Graham establishes minimum
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requirements for parole or early release programs.”) (Citation omitted). The Court articulated
the three minimum requirements, id. at 266–67 (all but first alteration in LeBlanc):
First, Graham held that such offenders must have the opportunity “to obtain release based on demonstrated maturity and rehabilitation.” [Graham, 560 U.S.] at 75, 130 S. Ct. 2011 (emphasis added). Put differently, the juvenile offender must have a “chance to later demonstrate that he is fit to rejoin society” and that “the bad acts he committed as a teenager are not representative of his true character.” Id. at 79, 130 S. Ct. 2011. To that end, a parole or early release system does not comply with Graham if the system allows for the lifetime incarceration of a juvenile nonhomicide offender based solely on the heinousness or depravity of the offender's crime….
Second, Graham held that the opportunity to obtain release must be “meaningful,” which means that the opportunity must be “realistic” and more than a “remote possibility.” Id. at 70, 75, 82, 130 S. Ct. 2011. Graham's “meaningful” requirement reflects the Supreme Court's long-standing characterization of “[p]arole [a]s a regular part of the rehabilitative process. Assuming good behavior, it is the normal expectation in the vast majority of cases.” Solem, 463 U.S. at 300–03, 103 S. Ct. 3001 (holding that, for purposes of the Eighth Amendment, executive clemency is not a substitute for parole because clemency is an “ad hoc” process that provides inmates with nothing more than a “bare possibility” of release). To that end, Graham held that the availability of executive clemency did not satisfy the “meaningful opportunity to obtain release” requirement. 560 U.S. at 69–70, 130 S. Ct. 2011.
Third, Graham held that a state parole or early release program must account for the lesser culpability of juvenile offenders: “An offender's age is relevant to the Eighth Amendment, and criminal procedure laws that fail to take defendants' youthfulness into account at all would be flawed.” Id. at 76, 130 S.Ct. 2011; see also Miller v. Alabama, __U.S.__, 132 S.Ct. 2455, 2465–66, 183 L.Ed.2d 407 (2012) (explaining that Graham's “foundational principle” is “that imposition of a State's most severe penalties on juvenile offenders cannot proceed as though they were not children”).[] Accordingly, a state parole or early release system that subjects juvenile offenders to more severe punishments than their adult counterparts necessarily violates Graham.
In light of Graham, the Fourth Circuit sought to “determine whether the conclusion…that
Geriatric Release complies with Graham's parole requirement was ‘contrary to, or an
unreasonable application of’ Graham.[]”, 841 F.3d at 267. The Fourth Circuit rejected the
conclusion of the Virginia courts that the geriatric release program satisfied the three minimum
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requirements outlined earlier. Id. at 259-260. It explained, id. at 260 (emphasis and alteration
added and citation omitted):
Most significantly, Virginia courts unreasonably ignored the plain language of the procedures governing review of petitions for geriatric release, which authorize the State Parole Board to deny geriatric release for any reason, without considering a juvenile offender's maturity and rehabilitation. In light of the lack of governing standards, it was objectively unreasonable for the state courts to conclude that geriatric release affords Petitioner with the “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation” [that] Graham demands.
Notably, the Court emphasized “the Parole Board’s authority to deny Geriatric Release
for any reason—and without consideration of the ‘decision factors’” at the initial review stage.
Id. at 268. And, of particular significance here, the Court concluded, id. at 269: “It was
objectively unreasonable to conclude that Geriatric Release satisfied Graham's requirement that
juvenile offenders be able to obtain release ‘based on maturity and rehabilitation,’ when, under
the plain and unambiguous language of the governing procedures, the Parole Board can deny every juvenile offender Geriatric Release for any reason whatsoever.[]”
Further, the LeBlanc Court said, 841 F.3d at 271 (citations omitted):
Geriatric Release also fails to satisfy the “meaningful” opportunity requirement because there are no standards governing the denial of Geriatric Release petitions…[M]echanisms that allow a decision-maker to grant or deny early release “for any reason without reference to any standards,” offer inmates nothing more than a “bare possibility” of release and therefore do not constitute “parole” for purposes of the Eighth Amendment.[]
According to the Fourth Circuit, it was “objectively unreasonable…to take the position
that a penal regime under which it concedes early release is the exception, rather than the
expectation, complies with Graham's meaningfulness requirement. Id. at 271. The Court said,
id. “[U]nder clearly established Supreme Court precedent—precedent repeatedly relied on by
Graham, id. at 70, 130 S. Ct. 2011—“parole” should be the “normal expectation in the vast
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majority of cases” (quoting Solem, 463 U.S. at 300–03). The Court also observed: “For purposes of Graham, the key issue is not whether the Parole Board is ‘able’ to consider a juvenile offender's rehabilitation and maturity—it is whether the Parole Board must consider rehabilitation and maturation.” 841 F.3d at 271 n. 10.
To be sure, “[t]here is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence.” Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7 (1979); cf. Hawkins v. Freeman, 195 F.3d 732, 747 (4th Cir. 1999) (indicating that there is no fundamental right to parole release). And in Graham, 560 U.S. at 75, the Supreme Court cautioned that a “State is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime.” However, plaintiffs “seek the opportunity to be judged under a constitutional parole scheme that gives them a ‘meaningful opportunity to obtain release’ as required under Montgomery and Miller…” ECF 35 at 14-15.
The Fourth Circuit’s reasoning in LeBlanc suggests that Graham and its progeny are not inapplicable as a matter of law, as defendants contend. It would make little sense for the Fourth Circuit to have determined that Graham imposes several minimum procedural requirements for parole programs if, and only if, the prisoner was sentenced to life without parole, but not when a prisoner is sentenced to life with parole under a system that allegedly does not afford meaningful opportunities for release. The logic of LeBlanc indicates that, in the absence of “permanent incorrigibility,” the rationale of Graham, Miller, and Montgomery applies to a Juvenile Offender sentenced to life with parole for a homicide offense. Montgomery, 136 S. Ct. at 734.
2. Whether plaintiffs have plausibly alleged a denial of a meaningful opportunity for release
Defendants argue that even if Graham, Miller, and Montgomery are applicable, plaintiffs have not plausibly alleged that they have been denied a meaningful opportunity for release.
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They assert: “[T]he plaintiffs have received consideration for parole, and that is all the Supreme Court decisions require.” ECF 23-1 at 49. Defendants emphasize that the Eighth Amendment “does not require the State to release that offender during his natural life.” Id. (citations and quotation marks omitted, emphasis in ECF 23-1).
Defendants also argue that the Named Plaintiffs “have had, and continue to have, meaningful and realistic opportunities to obtain release.” ECF 23-1 at 52; see generally id. at 5260. They note: “Each has repeatedly been considered for parole – and in the case of Mr. McNeill, even recommended for release.” Id. at 12. In addition, defendants maintain that consideration for parole, rather than parole itself, is what should be “the normal expectation in the vast majority of cases.” Solem, 463 U.S. at 300.
Plaintiffs counter that they have stated a claim that they have been denied a constitutionally adequate, meaningful, and realistic opportunity for release. They assert, ECF 35 at 31 (citations omitted):
Defendants claim that despite being in a system in which no juvenile lifer was paroled over the last two decades, and only 24 lifers, adult or juvenile, out of 2,000 have even been recommended for parole at all, the individual Plaintiffs “have had, and continue to have, meaningful and realistic opportunities to obtain release.” Defendants seem to suggest that, because individual Plaintiffs have made heroic attempts to turn their lives around within a broken system and because they have had parole hearings, Defendants’ policies and practices provide them a meaningful opportunity for release. That is absurd. For example, plaintiffs assert, id. at 33 (emphasis in original): “[F]or nearly 20 years, Mr. McNeill has been identified in the DOC as a strong candidate for progression to lesser security but has been denied this opportunity solely because of his status as a lifer and without regard for his youth at the time of offense.” See also id. at 34 (asserting that the complaint “chronicl[es] repeated refusals of parole to Mr. Foster, despite his near-perfect institutional
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record, either without any reason offered or else based on the nature and circumstances of the crime.[]”) (Internal quotation marks omitted).
“Case law and legal commentators both encourage the denial of Rule 12(b)(6) motions where novel or unique theories are presented.” Greiman, 79 F. Supp. 3d at 945–46; see id. at 946 (concluding that “discovery and full consideration of the case on the merits is warranted” because plaintiff “has asserted important constitutional claims which present issues of first impression[.]”). See, e.g., Wershe, supra, 763 F.3d at 505-06 (vacating dismissal of Eighth Amendment claim in light of “novelty” of the claim); McGary v. City of Portland, 386 F.3d 1259, 1270 (9th Cir. 2004) (“‘Court[s] should be especially reluctant to dismiss on the basis of the pleadings when the asserted theory of liability is novel or extreme, since it is important that new legal theories be explored and assayed in the light of actual facts rather than a pleader's suppositions.’” (quoting 5 Wright & Miller, § 1357, at 601–03); Igartua–De La Rosa v. United States, 417 F.3d 145, 192 (1st Cir. 2005) (same). The claims presented in this case are novel, “particularly given the recency of Graham” and “the correspondent lack of case law analyzing its scope and applicability.” Greiman, 79 F. Supp. 3d at 946.
As noted, in LeBlanc, 841 F.3d 256, the Virginia courts concluded that the State’s geriatric release program, with a two-stage review process for geriatric release, provided the petitioner with a meaningful opportunity for release. Id. at 261. As discussed, the Fourth Circuit recognized that Graham established at least three minimum requirements for parole or early release programs for juvenile nonhomicide offenders sentenced to life imprisonment, including: “(1) that juvenile nonhomicide offenders sentenced to life imprisonment must have the ‘opportunity to obtain release based on demonstrated maturity and rehabilitation,’ (2) that this opportunity must be ‘meaningful,’ and (3) that the early release or parole system must take into
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account the lesser culpability of juvenile offenders…” 841 F.3d at 267. The Fourth Circuit concluded that, as to juvenile offenders serving sentences of life without parole, the geriatric release program did not satisfy Graham because the parole board could deny release “for any reason whatsoever.[]” Id. at 269.
As outlined earlier, Maryland law currently requires the Governor’s approval of a MPC recommendation to grant parole to an inmate who has served fewer than twenty-five years of a life sentence, without application of diminution credits. C.S. § 7-301(d)(4). And, even if the MPC approves parole for an inmate who has served twenty-five years or more of a life sentence, the law allows the Governor to reject the MPC’s parole recommendation. C.S. § 7-301(d)(5). Notably, under the unambiguous text of Maryland law, Maryland’s Governor possesses unfettered discretion to deny every parole recommendation for any reason whatsoever or for no reason at all.
Indeed, the Maryland Court of Appeals has said: “The statutory provision applicable to the Governor’s approval, § 7-301(d)(4) of the Correctional Services Article, contains no factors or guidelines for the Governor’s exercise of discretion. Accordingly, the Governor is free to employ whatever guidelines he desires in exercising his discretion, except for guidelines that are constitutionally impermissible.” Lomax, 356 Md. at 578 n. 2, 741 A.2d at 481 n. 2. Similarly, C.S. § 7-301(d)(5) contains no factors or guidelines for the Governor’s exercise of discretion.
The absence of any standards governing the Governor’s exercise of discretion flies in the face of LeBlanc. There, the Fourth Circuit determined that the Virginia geriatric release program was unconstitutional under Graham because, among other reasons, there was a “lack of governing standards…”, which gave the parole board the authority to deny release “for any reason…” LeBlanc, 841 F.3d at 260. A parole procedure does “little in the way of actually
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making parole a possibility” when “the decision of whether to commute a sentence is entirely up to [the governor’s] discretion and the political tides of the day.” Funchess v. Prince, CV 142105, 2016 WL 756530, at *5 (E.D. La. Feb. 25, 2016). And, a system of executive clemency, which lacks governing standards, does not constitute a meaningful opportunity to obtain release for Juvenile Offenders. See Solem, 463 U.S. at 301 (explaining the difference between parole and commutation, which “is an ad hoc exercise of executive clemency. A Governor may commute a sentence at any time for any reason without reference to any standards.”).
Arguing that “Maryland’s early release system bears virtually no resemblance to the Geriatric Release program deemed unconstitutional in LeBlanc,[]” defendants point to recently adopted regulations that require the MPC to consider the factors in COMAR 12.08.01.18.A(3), in conjunction with a parole hearing for a prisoner who committed a crime as a juvenile. ECF 50 at 3. However, these regulations do not address the role of the Governor, nor do they affect the statute that confers on the Governor unfettered discretion to approve or deny a parole recommendation, for any reason or no reason, without a single standard to guide the decision.
Plaintiffs allege that early release is the exception: “[B]etween 1995 and 2014, the ‘MPC recommended [only] 24 lifers, both juveniles and adults, for parole. Every recommendation was rejected without any explanation to the individual denied parole.’” ECF 35 at 32 (citation omitted); see Solem, 463 U.S. at 300 (instructing that parole should be “the normal expectation in the vast majority of cases”). Plaintiffs also allege that they have been denied parole due to the nature of their offenses or their status as lifers and that Juvenile Offenders are treated worse by the Maryland parole system due to the MPC’s risk assessment tools. ECF 1, ¶¶ 61, 87.
I agree that “[i]t is not for this Court to determine whether the Parole's Board's procedures reflect best practices, or whether the Parole Board could institute procedures that provide
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juvenile offenders with better opportunities to obtain release.” Wershe, 1:12-CV-1375, 2016 WL 1253036, at *4. However, “the Supreme Court's proper regard for States' independent judgment regarding how best to operate their penal systems does not, ‘[e]ven in the context of federal habeas,...imply abandonment or abdication of judicial review.’” LeBlanc, 841 F. 3d at 274 (citation omitted and alteration in LeBlanc).
In the posture of this case, I must assume the truth of plaintiffs’ allegations. They state a plausible claim that Maryland’s system of parole has deprived them of the right to a meaningful opportunity for release, in contravention of the Eighth Amendment and Article 25 of the Maryland Declaration of Rights. See, e.g., Greiman, 79 F. Supp. 3d at 943 (“The Court cannot conclude as a matter of law at this early stage of the proceedings that the [parole board’s] parole review procedures either are or are not compliant with the constitutional mandate of Graham…”); Hill, supra, No. 10-14568, 2011 WL 2788205, at *6 (“Graham and Roper do not compel the conclusion that Plaintiffs' Eighth Amendment claims must fail as a matter of law, particularly at this early stage of the proceedings…The full Eighth Amendment analysis required by Graham involves the presentation of evidence that is not yet before the court on this Rule 12(b)(6) motion.”); Cf. Wershe, 763 F.3d at 506 (vacating district court’s dismissal of Eighth Amendment claim, “[g]iven the novelty of Wershe's claim and the fact that the parties have not had an opportunity to present briefing…”).
VII. Conclusion At this stage of the proceedings, plaintiffs have sufficiently alleged that Maryland’s parole system operates as a system of executive clemency, in which opportunities for release are “remote,” rather than a true parole scheme in which opportunities for release are “meaningful” and “realistic,” as required by Graham.
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For the reasons stated above, I shall GRANT in part and DENY in part the Motion to Dismiss (ECF 23). And, I shall DENY the Motion to Strike (ECF 36).
An Order follows.

Date: February 3, 2017

/s/ Ellen Lipton Hollander United States District Judge

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 Case 1:16-cv-01021-ELH Document 66 Filed 02/03/17 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

MARYLAND RESTORATIVE JUSTICE INITIATIVE et al.,
Plaintiffs,
v.
GOVERNOR LARRY HOGAN et al., Defendants.

Civil Action No. ELH-16-1021

ORDER For the reasons stated in the accompanying Memorandum Opinion, it is this 3rd day of February, 2017, by the United States District Court for the District of Maryland, ORDERED: 1) Plaintiffs’ Motion to Strike (ECF 36) is DENIED; 2) Defendants’ Motion to Dismiss, or in the Alternative, Motion for Summary Judgment
(ECF 23), construed as a motion to dismiss, is GRANTED as to Count Three and DENIED as to Count One and Count Two
/s/ Ellen Lipton Hollander United States District Judge

 
 Case 1:16-cv-01021-ELH Document 69 Filed 02/28/17 Page 1 of 25

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

MARYLAND RESTORATIVE

*

JUSTICE INITIATIVE, et al.,

*

Plaintiffs,

* No. 1:16-cv-01021-ELH

v.

*

GOVERNOR LARRY HOGAN, et al.,

*

Defendants.

* * * * * * * * *

ANSWER TO COMPLAINT

Defendants Governor of Maryland Lawrence J. Hogan, Jr.; Secretary of Public

Safety and Correctional Services Stephen T. Moyer; Chairman of the Maryland Parole

Commission David R. Blumberg; and Commissioner of Correction Dayena M. Corcoran,

through counsel, answer the Complaint, and state:

1. Defendants admit the allegations in the first sentence of ¶ 1, with the

exception of the allegation that Plaintiffs were sentenced without appropriate

consideration of their youth, which is denied. Defendants deny the allegations in the

second sentence of ¶ 1.

2. Defendants admit the allegations in ¶ 2, except that Defendants deny the

Plaintiffs’ allegations regarding the holding of Montgomery, inasmuch as the Court there

held only that the Miller prohibition on mandatory life without parole for juvenile

offenders announced a new substantive rule that must be give retroactive effect on state

collateral review.

3. Defendants admit the allegations in ¶ 3.

Case 1:16-cv-01021-ELH Document 69 Filed 02/28/17 Page 2 of 25
4. With regard to the allegations in ¶ 4, Defendants admit that the language quoted in that paragraph is a basis for the Court’s holdings in Miller and Montgomery.
5. Defendants admit the allegations in the first two sentences of ¶ 5. Defendants admit the allegation in the last sentence of ¶ 5, to the extent that it refers to criminal sentencing schemes that mandate life in prison without the possibility of parole for defendants convicted of homicide crimes committed as juveniles. Otherwise, Defendants deny that allegation.
6. Defendants admit the allegation in the first sentence of ¶ 6 to the extent that it refers to mandatory sentences of life in prison without the possibility of parole for defendants convicted of homicide crimes committed as juveniles. Otherwise, Defendants deny that allegation. Defendants admit the allegation in the second sentence of that paragraph, to the extent Plaintiffs refer to a system in which prisoners serving mandatory life sentences for crimes committed as juveniles are ineligible for parole and that relies solely on executive clemency. Otherwise, Defendants deny that allegation.
7. Defendants admit the allegations in the first sentence ¶ 7, to the extent that Plaintiffs refer to a statutory scheme that imposes mandatory life sentences without the possibility of parole for defendants convicted of homicide crimes committed as juveniles. Defendants deny the allegations in the second sentence of ¶ 7.
8. Defendants admit the allegation in the first sentence of ¶ 8. Defendants deny the allegations in the second and third sentences of ¶ 8. The allegation in the last sentence of ¶ 8 is admitted, except that defendants deny that the individuals referred to who are serving life sentences are only “theoretically parole-eligible.”
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9. The allegation in the first sentence of ¶ 9, that many of the individuals have served 30 or 40 years of their sentences, is admitted. Defendants also admit that some prisoners serving life sentences for crimes committed as juveniles have made progress toward demonstrating maturity and rehabilitation; the remaining allegations in ¶ 9 are denied.
10. The allegations in ¶ 10 are denied. 11. The allegations in ¶ 11 are denied. 12. The allegations in ¶ 12 are denied. 13. With regard to the allegations in ¶ 13, Defendants admit that the Maryland Restorative Justice Initiative (MRJI) is a plaintiff in this lawsuit and that it sues on behalf of its members, and are without knowledge or information sufficient to form a belief as to the truth of the remaining allegations regarding MRJI in ¶ 13. Defendants admit that Plaintiffs Calvin McNeill, Nathaniel Foster, and Kenneth Tucker are serving life sentences for the crime of murder committed as juveniles and that each has been incarcerated for more than 20 years, and deny the remaining allegations in ¶ 13. 14. Defendants admit the allegation in ¶ 14 that Defendants are state officials, and deny the remaining allegations in ¶ 14. 15. With regard to the allegations in ¶ 15, Defendants admit that Plaintiffs seek relief as stated in that paragraph, deny that Plaintiffs are entitled to any relief, and deny each allegation of unconstitutional conduct set forth in ¶ 15. 16. Defendants admit the allegations in the first sentence in ¶ 16. Defendants are without knowledge or information sufficient to form a belief as to the truth of the
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allegations in the second, third, and fourth sentences of ¶ 16. With regard to the fifth sentence in ¶ 16, Defendants admit that MRJI sues for declaratory and injunctive relief, and deny the remaining allegations in that sentence. Defendants deny the allegations in the sixth sentence of ¶ 16.
17. With regard to the allegations in ¶ 17, Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegation that Calvin McNeill is a member of the MRJI. Defendants admit that Mr. McNeill is serving a mandatory life sentence and note that the court possessed the authority to suspend part or all of that sentence. Defendants deny that the court imposed the life sentence “without appropriate consideration of his youth status.” Defendants deny the allegation that the offenses for which Mr. McNeill is currently incarcerated occurred on his 17th birthday. Defendants are without sufficient knowledge to admit or to deny the allegation that McNeill has matured into a responsible leader among prisoners at the Division of Correction (DOC). Defendants deny that Mr. McNeill has committed only one minor institutional infraction in over 25 years. Defendants admit that Mr. McNeill has served as a volunteer for numerous prison programs and that he has earned commendations from prison officials for his accomplishments. Defendants admit that Mr. McNeill is currently incarcerated at the Jessup Correctional Institution. Defendants deny that McNeill has been injured by the acts and policies of the defendants.
18. Defendants admit the allegations in the first sentence of ¶ 18. With regard to the allegations in the second sentence, Defendants admit that Mr. Foster received a mandatory life sentence and note that the court possessed the authority to suspend part or
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all of that sentence, and deny the remaining allegations in that sentence. Defendants deny the allegations in the third sentence and note that Mr. Foster is 51 years of age. With regard to the allegations in the fourth sentence, Defendants admit that Mr. Foster has never had a violent infraction, admit that he has served as a mentor and volunteer, and deny the remaining allegations in that sentence. Defendants deny the allegations in the fifth sentence, and note that Mr. Foster is incarcerated at the Eastern Correctional Institution. Defendants deny the allegations in the sixth sentence of ¶ 18.
19. With regard to the allegations in ¶ 19, Defendants admit that Mr. Tucker received a mandatory life sentence and note that the court possessed the authority to suspend part or all of that sentence, and deny the remaining allegations in the first sentence. Defendants admit the allegations in the second and third sentences, and deny the allegations in the fourth sentence of ¶ 19.
20. Defendants admit the allegations in the first sentence of ¶ 20. Defendants admit the allegation in the second sentence that Governor Hogan appoints the members of the Maryland Parole Commission and decides whether any individual will receive a grant of executive clemency, and deny the remaining allegations in that sentence. Defendants deny the allegations in the third sentence, and admit the allegations in the fourth sentence of ¶ 20.
21. Defendants admit the allegations in ¶ 21. 22. Defendants admit the allegation in the first sentence of ¶ 22. With regard to the allegations in the second sentence, Defendants admit that in his capacity as Secretary of the Department of Public Safety and Correctional Services (DPSCS), Mr. Moyer
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exercises authority over the policies and practices of the DOC, a unit of the DPSCS, and deny that the DOC is the “parent organization for the Maryland Parole Commission.” Defendants admit the allegations in the third sentence of ¶ 22.
23. Defendants deny the allegation in the first sentence of ¶ 23, note that Dayena Corcoran is the Commissioner of Correction and has been substituted as defendant in the place of former Commissioner Webb, and shall construe the remainder of the paragraph as applicable to Commissioner Corcoran. Defendants admit the allegations in the second and third sentences. With regard to the allegations in the fourth sentence, Defendants admit that the Commissioner has such decision-making authority within the DOC, but deny that the Commissioner has such decision-making authority within the Department, inasmuch as the Commissioner’s authority is subject to that of the Secretary of DPSCS. Defendants admit the allegation in the fifth sentence of ¶ 23.
24. Defendants admit the allegations in ¶ 24. 25. Defendants admit the allegations in ¶ 25. 26. Defendants admit the allegations in ¶¶ 26 through 55, which simply recite the holdings of various Supreme Court cases. Defendants deny any inference that Maryland’s system of release violates the pronouncements of the Supreme Court in Graham v. Florida, 560 U.S. 48 (2010), Miller v. Alabama, 132 S.Ct. 2455 (2012), and Montgomery v. Louisiana, 136 S.Ct. 718 (2016). 27. The allegations in ¶ 56 are denied. 28. Defendants admit the allegations in the first sentence of ¶ 57. The remaining allegations in ¶ 57 are denied.
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29. The allegations in ¶ 58 are denied. 30. The allegations in ¶ 59 are denied. 31. With regard to the allegations in ¶ 60, Defendants admit that under Md. Code Ann., Corr. Servs., § 7-301(d)(4), “an inmate serving a term of life imprisonment may only be paroled with the approval of the Governor,” but that under Corr. Servs. § 7301(d)(5), “[i]f the Governor does not disapprove the decision [of the Commission to grant parole to an inmate sentenced to life imprisonment who has served 25 years without application of diminution of confinement credits] within 180 days after receipt, the decision becomes effective.” Defendants deny the remaining allegations in ¶ 60. 32. The allegations in ¶ 61 are denied. 33. The allegations in ¶ 62 are denied. 34. The allegations in ¶ 63 are denied. 35. The allegations in ¶ 64 are denied. 36. With regard to the allegations in ¶ 65, Defendants admit that judges are required to impose a life sentence on juveniles who are tried as adults and who are convicted of first-degree murder, and note that judges are permitted to suspend all or a portion of the life sentence. Defendants also admit that subject to the holdings in Miller and Graham, the court may sentence a juvenile defendant to life without parole. 37. The allegations in ¶ 66 are admitted, except that under Graham, a judge may not sentence a juvenile to life without parole for a non-homicide offense. 38. The allegations in ¶ 67 are admitted. 39. The allegations in ¶ 68 are admitted.
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Case 1:16-cv-01021-ELH Document 69 Filed 02/28/17 Page 8 of 25
40. The allegations in ¶ 69 are denied. 41. With regard to the allegations in ¶ 70, Defendants admit that under Md. Code Ann., Corr. Servs., § 7-301(d)(4), “an inmate serving a term of life imprisonment may only be paroled with the approval of the Governor,” but that under Corr. Servs. § 7301(d)(5), “[i]f the Governor does not disapprove the decision [of the Commission to grant parole to an inmate sentenced to life imprisonment who has served 25 years without application of diminution of confinement credits] within 180 days after receipt, the decision becomes effective.” 42. The allegations in ¶ 71 are admitted. 43. With regard to the allegations in ¶ 72, Defendants admit that under Md. Code Ann., Corr. Servs., § 7-301(d)(4), “an inmate serving a term of life imprisonment may only be paroled with the approval of the Governor,” but that under Corr. Servs. § 7301(d)(5), “[i]f the Governor does not disapprove the decision [of the Commission to grant parole to an inmate sentenced to life imprisonment who has served 25 years without application of diminution of confinement credits] within 180 days after receipt, the decision becomes effective.” Defendants admit that the Parole Commission may make recommendations to the Governor regarding commutations. 44. The allegations in ¶ 73 are admitted. 45. With regard to the allegations in ¶ 74, Defendants admit that no statute or regulation requires the Governor to consider an individual’s age at time of offense in exercising his discretion concerning parole. The remaining allegations in ¶ 74 are denied. 46. The allegations in ¶ 75 are denied.
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Case 1:16-cv-01021-ELH Document 69 Filed 02/28/17 Page 9 of 25
47. The allegations in ¶ 76 are admitted. 48. The allegations in ¶ 77 are denied, inasmuch as the Governor may issue an executive order, which has the force and effect of law. 49. The allegations in ¶ 78 are admitted. 50. The allegation in ¶ 79 is denied. 51. The allegations in ¶ 80 are admitted. 52. The allegations in ¶ 81 are denied. 53. The allegations in ¶ 82 are denied. 54. The allegations in ¶ 83 are denied. 55. The allegation in the first sentence of ¶ 84 is admitted. The allegation that “parole commissioners receive no training in pertaining to adolescent psychological development or any other training that would assist commissioners in contextualizing offenses committed by youth in accordance with the findings of Roper, Graham, Miller and Montgomery,” is denied. 56. Defendants admit the allegation in ¶ 85 that Maryland does not provide counsel free of charge to juvenile lifers who are being considered for parole. Defendants deny that privately retained attorneys are not permitted to attend or to participate in parole proceedings. Defendants admit that if counsel for the prisoner is permitted to attend a parole hearing that has been opened to the public by the victim, the attorney for the prisoner may attend the hearing but is not permitted to speak during the hearing. Defendants admit that inmates are usually not permitted to see judicial, prosecutorial, or DOC case management recommendations concerning parole, parole commissioners’
9

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notes, or victim statements that were obtained by the Commission after a promise of confidentiality. Under Code of Maryland Regulation 12.08.01.17.C.5.d, “[i]f a risk assessment prepared for the Commission contains diagnostic opinions, that assessment may not be available for examination, only a summary that does not contain the diagnostic opinions may be prepared and made available, upon request, to the inmate or the inmate’s representative.” Defendants deny the remaining allegations in ¶ 85.
57. The allegations in ¶ 86 are denied with respect to Plaintiffs McNeill, Foster, and Tucker. Defendants are without sufficient knowledge to admit or to deny the allegations with respect to the unnamed members of the MRJI.
58. The allegations in ¶ 87 are denied. 59. With regard to the allegations in ¶ 88, Defendants admit that one former parole commissioner was skeptical of, and raised concerns about, the validity of the assessment tools used by Patuxent Institution to assess a prisoner’s risk of re-offending if released; defendants admit that this former commissioner may have expressed his concerns during parole hearings. Defendants deny that any other commissioners currently serving on the Commission share this former commissioner’s concerns. 60. Defendants deny the allegation in ¶ 89 that the Commission takes the position that its decision to approve an inmate serving a life sentence for parole is confidential; rather, such a decision is available for public inspection. Defendants admit that a recommendation made by the Commission to the Governor to commute a life sentence is confidential and that such a recommendation is protected from disclosure to
10

Case 1:16-cv-01021-ELH Document 69 Filed 02/28/17 Page 11 of 25
anyone, including the subject of the recommendation, by the common law doctrine of executive privilege.
61. With regard to the allegations in ¶ 90, Defendants admit that on rare occasions, the Commission has been asked to refrain from sending a recommendation for executive clemency or a parole approval for a period of one month. Defendants deny any implication that in the past two decades the Commission has ever been directed not to send parole approvals or commutation recommendations for an indefinite or extended period of time.
62. With regard to the allegations in the first sentence ¶ 91, Defendants admit that in 1994, the DOC adopted a policy that at the time precluded inmates serving life sentences from moving below medium security status, and that in 1997, the DOC adopted a policy that at the time precluded inmates serving life sentences from participation in work release and family leave programs, but deny that those policies are currently in effect. Defendants deny the allegations in the third sentence of ¶ 91.
63. Defendants deny the allegations in the first sentence of ¶ 92. With regard to the allegations in the second sentence, Defendants admit that an individual’s security classification “determines in which institutions he or she may be housed” and “the level of restriction upon his or her freedom of movement” to the extent that it is dependent on the institution in which the prisoner is housed, and deny the remaining allegations in ¶ 92.
64. Defendants deny the allegations in the first sentence of ¶ 93 and note that the DOC’s security classification levels are prerelease, minimum, medium, maximum, and maximum II. Defendants admit the remaining allegations in ¶ 93.
11

Case 1:16-cv-01021-ELH Document 69 Filed 02/28/17 Page 12 of 25
65. Defendants deny the allegations in ¶ 94. 66. Defendants deny the allegations in ¶ 95. 67. Defendants deny the allegations in ¶ 96. 68. Defendants deny the allegations in ¶ 97. 69. Defendants deny the allegations in ¶ 98. 70. Defendants deny the allegations in ¶ 99. 71. Defendants deny the allegations in ¶ 100. 72. Defendants admit the allegations in ¶ 101, with the exception of the allegation that inmates currently serving parole-eligible life sentences for crimes committed as juveniles are ineligible to receive the opportunities described in that paragraph, which is denied. 73. Defendants admit the allegation in ¶ 102 that, during the time period referenced in ¶ 101, lifers’ success in work release and family leave was an important factor in the assessment of their readiness for parole by the Parole Commission, but deny that such success was a “crucial” factor. Defendants admit the allegations in the second sentence of ¶ 102. 74. The allegations in ¶103 are denied. 75. The allegations in ¶104 are denied. 76. The allegations in ¶ 105 are denied. 77. The allegations in ¶ 106 are admitted. 78. The allegations in ¶ 107 are denied. 79. The allegations in ¶ 108 are admitted.
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80. The allegations in ¶ 109 are denied. 81. The allegations in ¶ 110 are admitted. 82. The allegations in ¶ 111 are denied. 83. The allegations in ¶ 112 are denied. 84. The allegation in the first sentence of ¶ 113 is denied. The allegation in the second sentence of ¶ 113 is admitted, except that the characterization of the number of cases recommended to the Governor for commutation as “a handful of cases” is denied. 85. With regard to the allegations in ¶ 114, Defendants admit that Governor O’Malley took office in 2007. Defendants deny the allegation in the second sentence of ¶ 114. Defendants admit that the Commission recommended Mr. McNeill for a commutation of sentence; the remaining allegations in the third sentence of ¶ 114 are denied. The allegation in the fourth sentence of ¶ 114 is denied. Defendants admit that in 2011, the legislature amended § 7-301 of the Correctional Services Article to provide that “[i]f the Governor does not disapprove the decision [of the Commission to grant parole to an inmate sentenced to life imprisonment who has served 25 years without application of diminution of confinement credits] within 180 days after receipt, the decision becomes effective.” Defendants deny that the statute was amended “[l]argely in response to the unfairness of the lifers in this situation.” The allegation in the last sentence of ¶ 114 is admitted. 86. The allegations in ¶ 115 are admitted. 87. The allegations ¶ 116 are denied. 88. The allegations in ¶ 117 are denied.
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89. With regard to the allegations in ¶ 118, at this time: Defendants are without are without knowledge or information sufficient to form a belief as to the truth of the allegation that 181 lifers were paroled between 1969 and 1994, and are unable to verify the accuracy of the data for Governor Mandel from 1969 to 1979; Defendants admit that the data for Governor Hughes from 1979 to 1987 and Governor Schaefer from 1987 to 1991 appear to be accurate; and Defendants deny that the data for Governor Schaefer from 1991 to 1995 is accurate.
90. With the exception of the allegation that “MRJI members…have begun to regard parole proceedings as futile and the promise of parole as completely illusory,” the allegations in ¶ 119 are denied. Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegation that “MRJI members…have begun to regard parole proceedings as futile and the promise of parole as completely illusory.”
91. With regard to the allegations in ¶ 120, Defendants admit that Mr. McNeill was sentenced to life with the possibility of parole under Maryland’s mandatory sentencing scheme because in 1981, he committed a murder during a robbery at a dice game. Defendants deny the remainder of the allegations in ¶ 120 that the court sentenced him without adequate consideration of his youth status and that he committed the murder and robbery on the day he turned 17 years old.
92. With regard to the allegations in ¶ 121, Defendants deny that Mr. McNeill is now 51 years old, and note that he is now 52 years old. Defendants admit that he has spent over 35 years in prison, which is over two-thirds of his life.
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93. With regard to the allegations in ¶ 122, Defendants admit that Mr. McNeill was sentenced to life with the possibility of parole under Maryland’s mandatory sentencing scheme but note that the sentencing court possessed the authority to suspend part or all of Mr. McNeill’s life sentence. Defendants are without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in ¶ 122.
94. Defendants deny the allegations in the first sentence of ¶ 123. At this time, Defendants are unable to verify the truth of the allegation in the second sentence of ¶ 123 that “nearly 100 lifers had been paroled in the preceding ten years.”
95. Defendants admit the allegations in ¶ 124 with the exception of the allegation that Mr. McNeill has had only one “exceedingly minor” infraction in the past 25 years, which is denied.
96. Defendants admit the allegation in ¶ 125 that the Commission recommended Mr. McNeill for a commutation of sentence but deny that the recommendation was made in 2008.
97. Defendants admit the allegation in ¶ 126 that in 2011, Governor O’Malley declined to commute Mr. McNeill’s life sentence, but deny that the he acted three years after the Commission recommended commuting the life sentence. The remaining allegations in ¶ 126 of the Complaint are admitted.
98. Defendants admit the allegation in ¶ 127 that in 2011, the Commission decided to rehear Mr. McNeill for parole in 2015. Defendants deny the remaining allegations in ¶ 127.
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99. Defendants admit the allegation in ¶ 128 that in 2015, the commissioners who conducted Mr. McNeill’s parole hearing told him that they would be referring him for a risk assessment. Defendants deny that inmates are currently referred to Patuxent for risk assessments, and they deny that Mr. McNeil’s risk assessment has not been completed. Defendants admit that Mr. McNeill’s risk assessment had not been completed when the Complaint in this case was filed.
100. Defendants admit the allegation in ¶ 129 that the Governor can deny the parole of an inmate serving a life sentence, and Defendants admit that the Governor can deny the Commission’s recommendation to commute a life sentence, for any lawful reason, without explanation. Defendants deny that there is no opportunity for review of the Governor’s decision.
101. Defendants deny the allegation in ¶ 130 that Mr. McNeill committed only one offense as a juvenile. Defendants admit that after the court sentenced him to life in prison, that he was classified to maximum security, and that he was initially housed at the Maryland Penitentiary.
102. Defendants admit that “Year after year, DOC classification counselors assessing Mr. McNeill’s readiness for parole have noted his ‘excellent’ record,” and admit that “For nearly 20 years, Mr. McNeill has been identified as a strong candidate for progression to lesser security.” The remainder of the allegations in ¶ 131 are denied. Defendants further deny any inference that Mr. McNeill was or is entitled to be paroled.
103. Defendants admit the allegation in ¶ 132 that in 1997 and 2000, DOC classification counselors wrote the statements attributed to them in ¶ 132.
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104. The allegations in ¶ 133 are admitted with respect to past classification decisions only.
105. The allegations in ¶ 134 are denied. 106. The allegations in ¶ 135 are denied. 107. With regard to the allegations in ¶ 136, Defendants admit that Mr. Tucker was sentenced to life with the possibility of parole in 1974 at age 17 for participating in a robbery-murder with another teenager during which the victim was killed; that Mr. Tucker has been incarcerated for approximately 42 years; and that he is 60 years old. Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegation that during the robbery Mr. Tucker’s co-defendant killed the victim, and deny the remaining allegations in ¶ 136. 108. Defendants admit the allegations in ¶ 137, with the exception of the allegation that Mr. Tucker “faced a mandatory penalty of life in prison,” which is denied, inasmuch as the sentencing court possessed the authority to suspend part or all of Mr. Tucker’s sentence. 109. With regard to the allegations in ¶ 138, Defendants admit that Mr. Tucker pled guilty, and are without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in that paragraph. 110. With regard to the allegations in ¶ 139, Defendants admit that Mr. Tucker earned his high school equivalency in 1975, an associate’s degree in 1989, and a bachelor’s degree in psychology in 1994; that he has obtained certification or training in metal and wood work apprenticeships, clerical work, and food service sanitation; that he
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is currently an observation aide; and that he participates in the JCI Scholars program. Defendants are without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in ¶ 139.
111. Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations in the first sentence of ¶ 140. Defendants admit the remaining allegations in that paragraph, with the exception of the allegation that as of 1987, Mr. Tucker had an “infraction-free record,” which is denied.
112. Defendants admit the allegations in ¶ 141. 113. Defendants deny the allegations in the first sentence of ¶ 142. Defendants admit that Mr. Tucker declined his parole hearing in 1996, and did not have a parole hearing again until 2014, and are without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in ¶ 142. 114. Defendants admit the allegations in the first sentence of ¶ 143, deny the allegations that the commissioners “denied parole,” and admit that the commissioners elected to re-hear the case in 2017. Defendants admit the remainder of the allegations in ¶ 143, except that they are without knowledge or information sufficient to form a belief as to the truth of the allegation that Mr. Tucker “received no reply to a letter requesting an explanation,” and state that a letter was sent to Mr. Tucker in reply to his letter on April 9, 2015. 115. Defendants deny the allegation in the first sentence of ¶ 144. Defendants admit the remaining allegations in ¶ 144, except that Defendants deny that the use of the tests penalized Mr. Foster.
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116. Defendants deny the allegations in ¶ 145. 117. With respect to the allegations in the first sentence of ¶ 146, Defendants deny Plaintiffs’ characterization of the crime and state that Mr. Foster shot and killed the victim during the course of an attempted robbery of the victim. Defendants admit the allegation in the first sentence that the crime occurred in 1983, when Mr. Foster was 17 years old, and admit the allegations in the second and third sentences of that paragraph. 118. Defendants admit the allegation in ¶ 147 that Mr. Foster’s case involved a homicide that occurred during a robbery and that he was charged with first-degree murder, and deny the remaining allegations in ¶ 147. 119. Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegation in the first sentence of ¶ 148 that “there is nothing in Mr. Foster’s record to suggest, nor was any finding ever made, that he was among those rare juveniles whose crimes reflect irreparable corruption,” although Defendants admit that neither the DOC nor the Parole Commission has made a finding that his crime reflects irreparable corruption. Defendants admit that Mr. Foster had graduated from Southwestern High School and was working as a janitor at the time of his offense and are without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in ¶ 148. 120. Defendants admit the allegation in ¶ 149. 121. Defendants deny the allegation in the first sentence of ¶ 150. Defendants admit the allegations in the second and third sentences of ¶ 150.
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Case 1:16-cv-01021-ELH Document 69 Filed 02/28/17 Page 20 of 25
122. With regard to the allegations in ¶ 151, Defendants admit that Mr. Foster completed coursework through Coppin State College and earned placement on the Dean’s List during his incarceration, and are without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in ¶ 151.
123. The allegation in the first sentence in ¶ 152 is admitted. The allegations in the second and third sentences of ¶ 152 are denied, although Defendants admit that Mr. Foster was formerly employed as lead clerk at Maryland Correctional Enterprises in the sheet metal shop.
124. The allegations in ¶ 153 are admitted. 125. The allegation in ¶ 154 is admitted. 126. The allegation in ¶ 155 is admitted. Defendants also state that Mr. Foster had a parole hearing in March 2016. 127. With regard to the allegations in ¶ 156, Defendants admit that Mr. Foster has remained at medium security since 1994, and also admit that the Maryland Parole Commission recommended in 1995 that Mr. Foster progress to lesser security, “if possible.” The remaining allegations in ¶ 156 are denied. 128. The allegations in ¶ 157 are admitted, with the exception of the allegation that “[t]he only notation made by the parole commissioners who heard his case was to check a box under ‘Re-Hearing Recommendations’ that was marked ‘Progress to Lesser Security’ with a handwritten annotation ‘If possible,’” which is denied, inasmuch as the parole commissioners also made a notation that Mr. Tucker’s offense was his “1st M.A.I.,” i.e., first major adult incarceration.
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Case 1:16-cv-01021-ELH Document 69 Filed 02/28/17 Page 21 of 25
129. The allegations in ¶ 158 are admitted. 130. The allegations in the first and third sentences of ¶ 159 are admitted. Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations in the second sentence of ¶ 159. 131. The allegations in ¶ 160 are admitted. 132. The allegations in the first sentence of ¶ 161 are admitted, with the exception of the allegation that the parole commissioners “denied parole,” which Defendants deny, inasmuch as the parole commissioners elected to re-hear the case in 2011. The allegations in the second sentence are admitted, with the exception of the allegation that the parole commissioners “reject[ed] parole,” which Defendants deny for the same reason as their denial in the first sentence of this paragraph. Defendants admit the allegations in the last sentence of ¶ 161. 133. The allegations in ¶ 162 are admitted. 134. The allegations in the first sentence of ¶ 163 are admitted. The allegations in the second sentence are denied for the reasons stated in the first sentence of ¶ 132 of this answer. Defendants admit the allegations in the third sentence of ¶ 163. 135. Defendants admit the allegations in ¶ 164. 136. With regard to the first sentence of ¶ 165, Defendants admit the allegation that Mr. Foster declined his parole hearing in 2015, deny the allegation that the Parole Commission has not considered his “juvenile status” at the time of the offense, and are without knowledge or information sufficient to form a belief as to the truth of the allegations in the remainder of that sentence. With regard to the allegations in the second
21

Case 1:16-cv-01021-ELH Document 69 Filed 02/28/17 Page 22 of 25
sentence of ¶ 165, Defendants admit that Mr. Foster reinstated his participation, and are without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in that sentence. Defendants admit the allegation in the third sentence of ¶ 165.
137. The allegations in ¶ 166 are denied. 138. With regard to the allegations in ¶ 167, Defendants incorporate their responses to the allegations in ¶¶ 1 through 137 as if fully set forth herein. 139. Defendants deny the allegations in the first sentence of ¶ 168 and state that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders convicted of homicide offenses or for juveniles in non-homicide cases without adequate regard for their status as minors, and denies them a meaningful opportunity for release upon demonstrated rehabilitation. Defendants further state that Maryland’s system of early release provides offenders serving life sentences for crimes committed as juveniles with a meaningful opportunity for release upon demonstrated rehabilitation. 140. The allegations in ¶ 169 are denied. 141. The allegations in ¶ 170 are denied. 142. The allegations in ¶ 171 are denied. 143. The allegations in ¶ 172 are denied. 144. The allegations in ¶ 173 are denied. 145. With regard to the allegations in ¶ 174, Defendants incorporate the responses to ¶¶ 1 through 137 as if fully set forth herein.
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Case 1:16-cv-01021-ELH Document 69 Filed 02/28/17 Page 23 of 25
146. Defendants deny the allegations in the first sentence of ¶ 175 and state that Article 25 of the Maryland Declaration of Rights forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders convicted of homicide offenses or for juveniles in non-homicide cases without adequate regard for their status as minors, and denies them a meaningful opportunity for release upon demonstrated rehabilitation. Defendants further state that Maryland’s system of early release provides offenders serving life sentences for crimes committed as juveniles with a meaningful opportunity for release upon demonstrated rehabilitation.
147. The allegations in ¶ 176 are denied. 148. The allegations in ¶ 177 are denied. 149. The allegations in ¶ 178 are denied. 150. The allegations in ¶ 179 are denied. 151. The allegations in ¶ 180 are denied. 152. The allegations in Count 3 in ¶¶ 181 through 185 do not require a response from the Defendants because Count 3 was dismissed by this Court’s order of February 3, 2017 (ECF 66). 153. Defendants respectfully request that the Court deny Plaintiffs’ requests for declaratory and injunctive relief set forth at pp. 59-61 of the Complaint. 154. With regard to the arguments set forth in the bolded and unnumbered headings in the Complaint, Defendants admit that the allegations in I.A on p. 13 and I.B on p. 15 accurately summarize the holdings of the Supreme Court; deny the allegations in I.C on p. 17; deny the allegations in II. and II.A on p. 20, II.B on p. 22, II.C. and II.C.1 on
23

Case 1:16-cv-01021-ELH Document 69 Filed 02/28/17 Page 24 of 25 p. 23, II.C.2 on p. 26, and II.C.3 on p. 29; deny the allegations in III on p. 33, and IV on p. 39; and further deny the allegations contained in the headings under “Causes of Action” on pp. 54, 56, and 57.
Affirmative Defenses 1. The Complaint fails to state a claim upon which relief may be granted for the reasons stated in Defendants’ motion to dismiss and memorandum in support (ECF Nos. 23 and 23-1). 2. Plaintiffs’ claims are barred by the Eleventh Amendment. 3. Plaintiffs’ claims are barred by the applicable statute of limitations. 4. Plaintiffs Calvin McNeill, Nathaniel Foster, and Kenneth Tucker failed to exhaust their administrative remedies as required by the Prison Litigation Act, 42 U.S.C. § 1997e.
Respectfully submitted, BRIAN E. FROSH Attorney General of Maryland
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Case 1:16-cv-01021-ELH Document 69 Filed 02/28/17 Page 25 of 25
/s/ MICHAEL O. DOYLE Federal Bar No. 11291 Assistant Attorney General Office of the Attorney General Department of Public Safety and
Correctional Services 300 East Joppa Road, Suite 1000 Towson, Maryland 21286 (410) 339-7339 (410) 764-5366 (fax) michaelo.doyle@maryland.gov
/s/ SUSAN HOWE BARON Assistant Attorney General Federal Bar No. 06304 Department of Public Safety and
Correctional Services 300 East Joppa Road, Suite 1000 Towson, Maryland 21286 410-339-7341 410-764-5366 (fax) susan.baron@maryland.gov Attorneys for Defendants
25

 
 2017 WL 4280779 Only the Westlaw citation is currently available.
United States District Court, D. Maryland.
MARYLAND RESTORATIVE JUSTICE INITIATIVE, et al., Plaintiffs v. HOGAN, et al., Defendants.
Civil Case No. 16–01021–ELH |
Signed 09/27/2017
Attorneys and Law Firms
Barry J. Fleishman, Shapiro Lifschitz & Schram, Alexander Haywood Merritt, Ward Gary Scott Ward, Mary E. Borja, Richard A. Simpson, Wiley Rein LLP, Washington, DC, Deborah A. Jeon, American Civil Liberties Union of Maryland Foundation, Sonia Kumar, ACLU of Maryland, Baltimore, MD, for Plaintiffs.
Julia Doyle Bernhardt, Steven M. Sullivan, State of Maryland Office of the Attorney General, Baltimore, MD, Michael O. Connor Doyle, Susan Howe Baron, State of Maryland Office of the Attorney General, Towson, MD, for Defendants.
J. Mark Coulson, United States Magistrate Judge
MEMORANDUM OPINION
*1 This case concerns a challenge to the constitutionality of Maryland’s parole system as applied to individuals who received sentences of life imprisonment with parole for homicide offenses committed as juveniles. The Maryland Restorative Justice Initiative (“MRJI”) filed suit on behalf of Calvin McNeill, Nathaniel Foster, and Kenneth Tucker (collectively, “Plaintiffs”) against four Maryland officials in their official capacities: Governor Larry Hogan; David Blumberg, Chair of the Maryland Parole Commission; Stephen Moyer, Secretary of the Maryland Department of Public Safety and Correctional Services; and Dayena M. Corcoran, Commissioner of the Maryland Division of Correction, (collectively, the “State”).

This case has been referred to me for resolution of all discovery and related scheduling matters pursuant to 28 U.S.C. § 636 and Local Rule 301. (ECF No. 85). Now pending before the Court is Plaintiffs’ Motion to Compel, complaining of the State’s insufficient and incomplete answers to discovery requests. (ECF No. 84). The Court has reviewed Plaintiffs’ Motion to Compel, the State’s Opposition to Plaintiffs’ Motion to Compel, and Plaintiffs’ Reply in Support of its Motion to Compel. Id. The Court held a hearing on the issues on September 26, 2017. For the reasons stated below, Plaintiffs’ Motion to Compel is granted in part and denied in part.
I. Timeframe of Relevant Discovery (Interrogatory Nos. 3, 4, 6, 12; Request Nos. 1, 3–8) Plaintiffs argue that the State must provide discovery materials dating back to 1995, “the year then-Governor Parris Glendening announced that he was unwilling to grant parole to individuals serving life sentences.” (Pl. Mot. to Compel, ECF No. 84–3 at 13). Plaintiffs assert that since Governor Glendening adopted this “life means life” policy, other administrations have carried this forward, either explicitly or in practice.
The State responds by pointing out that it has already agreed to provide discovery dating back to 2004, the first year in which any of the named defendants held office in Maryland, and that the “proper focus of this case should be the State’s current policies and procedures regarding the parole of juvenile lifers” because Plaintiffs “have requested only prospective declaratory and injunctive relief.” (Def. Opp., ECF No. 84–7 at 5).
The Court agrees with the State. Even if, for the sake of argument, current policy was influenced by prior administrations, it is the policy itself and its current implementation by these specific defendants that is at issue in this case. By agreeing to provide more than a dozen years of information, the State’s position is reasonable and proportional to the needs of the case, and is therefore compliant with the Federal Rules of Civil Procedure. Fed. R. Civ. P. 26(b)(1) (“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case[.]”).
II. Executive Privilege (Interrogatory Nos. 3, 4, 10; Request Nos. 5, 6, 8, 9) *2 At oral argument, the State clarified that, with one categorical exception,1 it does not object to producing
1

documents relating to parole decisions during the relevant timeframe because such decisions do not contain “recommendations” in the strictest sense to the Governor, but instead reflect an approval by the Parole Commission that is then sent to the Governor for his sign-off. However, the State differentiates documents related to commutations from those related to parole decisions because the former do, in fact, contain a formal recommendation by the Parole Commission to the Governor. As to those documents, the State has agreed to produce all information, except the recommendation itself,2 for any commutation files that have been acted upon by the Governor but will not produce any files for commutation decisions currently pending before the Governor (of which there are seventeen (17)). The State relies on executive privilege in support of its position.
In cases before a federal court based on federal question jurisdiction, executive privilege is governed by federal common law. Pulte Home Corp. v. Montgomery Cnty., No. CIV. GJH–14–3955, 2017 WL 2361167, *2 (D. Md. May 31, 2017); Jones v. Murphy, 256 F.R.D. 510, 515 n.5 (D. Md. 2008) (applying federal common law to claims of executive privilege “because the state [of Maryland] and federal laws of executive privilege do not conflict” and are substantially similar). Part of the executive privilege is the deliberative process privilege.
The focus of the deliberative process privilege is protecting against disclosure of “letters, memoranda or similar internal government documents containing confidential opinions, deliberations, advice or recommendations from one governmental employee or official to another official for the purpose of assisting the latter official in the decision-making function.” Johnson v. Baltimore City Police Dept., No. CIV. ELH–12–2519, 2013 WL 497868, *6 (D. Md. Feb. 7, 2013) (internal citations omitted). In order for an objection based on the deliberative process privilege to apply, a document must be both predecisional and deliberative. “Predecisional documents are those prepared in order to assist an agency decisionmaker in arriving at his decision and deliberative documents are those that reflect the give-and-take of the consultative process by revealing the manner in which the agency evaluates possible alternative policies or outcomes.” Solers, Inc. v. IRS, 827 F.3d 323, 329 (4th Cir. 2016). Any factual material that may be segregated from the deliberative document and that does not reveal the deliberative process is not subject to the protection and must be disclosed. Freeman v. U.S. Dept. of Justice, 723 F.Supp. 1115, 1121 (D. Md. 1988).
Plaintiffs argue that: (1) the State has not asserted executive privilege with sufficient particularity; (2) even if executive privilege applies to the Parole Commission’s

recommendation, it does not apply to factual information within the files; and (3) executive privilege, even if it applies, is not absolute. (Pl. Mot. to Compel, ECF No. 84–3 at 4–12).
The Court disagrees with Plaintiffs’ first contention. It is clear that the redacted recommendations in the commutation files are those of the type contemplated by Johnson, supra. The deliberative process privilege clearly applies to the specific recommendation the Parole Commission submits to the Governor prior to the Governor’s final commutation decision. Each recommendation letter is prepared by the Parole Commission to assist the Governor, as decisionmaker, in arriving at a final decision for each offender. Moreover, the letter represents the manner in which the Parole Commission and the Governor evaluate possible alternative outcomes in each offender’s case. The redacted versions of the letters (as exemplified in ECF No. 84–12) offered by the State are sufficient to protect the information to which the deliberative process privilege applies and still properly provide the discovery that Plaintiffs requested, with respect to cases in which the Governor has already made a commutation decision.3
*3 The Court agrees with Plaintiff’s second contention, to a point. Factual information generally does not fall within the deliberative process privilege. As to those commutation decisions that have already been made, the Court expects (and the State seems to agree based on its position at oral argument) that the State will produce the portions of the already-decided commutation files that contain only factual information.
As for those seventeen (17) commutation decisions currently pending with the Governor, the Court will not order their production at this juncture. The State’s interest in shielding the deliberative process as it is currently unfolding in real time, along with the interest of the seventeen (17) individuals who await the outcome of that process, outweighs any claim for immediate access to the information that the Plaintiffs have. Once those decisions have been made, the State will produce them as outlined above.
III. Attorney Work Product & Attorney–Client Privilege (Interrogatory Nos. 3, 4, 10; Request Nos. 5– 11) The attorney work product protection and attorney-client privilege both serve to prevent discovery of related materials. The attorney work product protection, codified at Federal Rule of Civil Procedure 26(b)(3)(A), prevents discovery of “documents and tangible things that are
2

prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party’s attorney, consultant, indemnitor, insurer, or agent).” Similarly, the attorney-client privilege prevents the disclosure of a confidential communication between a client and his or her attorney for the purpose of obtaining legal advice. The privilege applies “(1) [w]here legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his insistence permanently protected (7) from disclosure by himself or by his legal adviser, (8) except the protection may be waived.” Sky Angel U.S., LLC v. Discovery Communications, LLC, 28 F.Supp.3d 465, 482 (D. Md. 2014). A claim of attorney-client privilege is only legitimate where the client has sought the giving of legal, not political, advice. See Republican Party of North Carolina v. Martin, 136 F.R.D. 421, 246 (E.D. N.C. 1991) (“In order for the privilege to apply, the attorney-client communication must be given incident to a request for, or the rendition of legal advice. If the communication essentially involves the giving of political advice, then it is not privileged.”) (internal citations omitted); Evans v. City of Chicago, 231 F.R.D. 302, 312– 14 (N.D. Ill. 2005) (holding that communications between governor and governor’s counsel reflecting political advice, not legal advice, were not privileged).
The distinction between legal advice and political advice is particularly relevant to this lawsuit due to the roles of the Governor and the Office of Legal Counsel within the commutation/parole process in Maryland. It is quite possible that some communications between the Governor and the Office of Legal Counsel were made for the purpose of obtaining legal advice, and it is also quite possible that some communications were made for the purpose of obtaining other types of advice that would fall outside the privilege. However, the State needs to provide a complete privilege log detailing the documents for which privilege is claimed. See United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982) (holding that the burden is on the proponent of the privilege to demonstrate “not only that an attorney-client relationship existed, but also that the particular communications at issue are privileged and that the privilege was not waived.”). Once the production of the documents and log are complete, the Court will have sufficient information to decide any challenge to the privilege assertion by Plaintiffs for any particular document.
Footnotes

IV. Risk Assessments Used in the Parole Evaluation Process (Request No. 4) *4 Within the parole and commutation files is the “Risk Assessment,” which is considered as one part of the process. As the State explains, each individual’s risk assessment includes results of psychological testing, past instances of physical or sexual abuse, drug and alcohol use, family trauma, victim information, etc. The State takes no issue with providing the named Plaintiffs with copies of their own risk assessments, but objects to providing the risk assessments of non-plaintiffs given the sensitive nature of the file contents. The State also emphasizes that the risk assessment is just one piece of data considered by the Parole Commission in its decisionmaking process and therefore is not critical to Plaintiff’s case. Moreover, the State points out that this case does not involve an assessment of any individual parole/commutation decision nor does it include any argument from Plaintiffs that they were being treated differently from other similarly-situated offenders. Plaintiffs confirm this, but insist that the risk assessments are necessary to fully understand the parole/commutation process in Maryland. Further, Plaintiffs argue that any confidentiality concerns can be alleviated with the use of a protective order.
The Court shares the State’s privacy concerns given the highly sensitive file contents of strangers to this litigation. A protective order may offer some protection of further dissemination of file contents beyond the litigation, but does not address the more fundamental issue of sharing this information with Plaintiffs themselves and their litigation team. At the same time, Plaintiffs should be given some insight into the types of information collected and its potential role in the process. Accordingly, the State will produce six (6) risk assessments (three (3) from juvenile lifers and three (3) from adult lifers) with the personally-identifiable information redacted.
V. Conclusion For the foregoing reasons, Plaintiff’s Motion to Compel (ECF No. 84) is GRANTED in part and DENIED in part. A separate Order shall follow.
All Citations
Slip Copy, 2017 WL 4280779
3

1

The State does object to producing the “Risk Assessment” portion of the parole files other than those of the individual plaintiffs,

which will be separately addressed in Section III below.

2

As with parole files, the State objects to producing the Risk Assessment portion of the commutation files.

3

Additionally, as disclosed at oral argument, the Plaintiffs already have a general sense of the recommendation since, by virtue of

the fact that it is being sent to the Governor, the Parole Commission is recommending commutation of some sort.

4

 
 Case 1:16-cv-01021-ELH Document 184 Filed 10/17/18 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

*

MARYLAND RESTORATIVE JUSTICE

INITIATIVE, et al.

*

Plaintiffs

*

v.

*

Civil Case No. 16–01021–ELH

HOGAN, et al.

*

Defendants.

*

* * * * * * * * * * * * *

MEMORANDUM OPINION

This case concerns a challenge to the constitutionality of Maryland’s parole system as

applied to individuals who received sentences of life imprisonment with parole eligibility for

offenses committed as juveniles. The Maryland Restorative Justice Initiative (“MRJI”) filed suit

on behalf of Calvin McNeill, Nathaniel Foster, and Kenneth Tucker (collectively, “Plaintiffs”)

against four Maryland officials in their official capacities: Governor Larry Hogan; David

Blumberg, Chair of the Maryland Parole Commission; Stephen Moyer, Secretary of the

Maryland Department of Public Safety and Correctional Services; and Dayena M. Corcoran,

Commissioner of the Maryland Division of Correction, (collectively, the “State”).

This case has been referred to me for resolution of all discovery and related scheduling

matters pursuant to 28 U.S.C. § 636 and Local Rule 301. (ECF No. 85). Now pending before

the Court is the State’s Motion for Protective Order Regarding Confidentiality of Discovery

Material (ECF No. 154) and Plaintiffs’ Opposition and Conditional Cross Motion Challenging

Confidentiality Designation (ECF No. 166). The Court has also considered the State’s Reply and

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Opposition to Plaintiffs’ Cross Motion. (ECF No. 168).1 The issues are briefed and no hearing
is necessary. Loc. R. 105.6 (D. Md. 2014).
The State asks this Court to enter language in a protective order limiting the distribution
of three categories of discovery materials that the State has either produced or will produce: (1)
materials pertaining to individually named prisoners (absent a signed release from the prisoner);
(2) the risk assessment tools and tests that assist in making parole determinations; and (3)
personnel records of current and former psychologists who administer the aforementioned tools
and tests. (ECF No. 154-1 at 5-7). Specifically, the State proposes provisions in the protective
order for those three categories that would, absent leave of court, prevent distribution of such
discovery material to a current or former prisoner, including a party (or, in the case of Plaintiff MRJI, a member of a party2), effectively making such materials for attorneys’ eyes only.
Plaintiffs do not outright oppose a protective order, but do oppose the State’s proposed
distribution limitation for the three categories of information. As to the prisoner’s records,
Plaintiffs argue that the proposed limitation is unjustified, would prevent the party plaintiffs from
assisting counsel, and would result in the cloaking of whole files even where such files contain
non-confidential information. (ECF No. 166 at 3-4). As the the other two categories, Plaintiffs
argue that copyright law and the concern for personnel records are insufficient reasons to restrict
1 Additionally, Amici filed a Position on the Pending Motion and For a Protective Order and a Cross-Motion to “Ensure” The Victims’ Privacy, Dignity, and Fairness Rights “Forthwith” as Required by 18U.S.C. § 3771(D)(3) (ECF No. 174). Pending before this Court is Plaintiffs’ Motion to Strike this Amici Position and Cross-Motion (ECF No. 180) and the Amici’s Response in Opposition to Plaintiff’s Motion to Strike (ECF No. 182). The Court is currently inclined to deny Plaintiffs’ motion but in doing so reminds Amici that in her previous order on this subject (ECF No. 65 at 13), Judge Hollander ruled that this Court will not consider arguments advanced by amici that were not raised by the parties. Similarly, this Court will not consider requests for relief advanced by amici that are not raised by the parties. Any formal decision on these motions will be by separate order. In any event, the Court has reviewed the Amici pleading and concludes that the protections for such information contained herein are sufficiently responsive to the concerns raised regarding victim information, which are similar to the general concerns raised by the State for other types of sensitive information. 2 According to the State, Plaintiff MRJI has refused in discovery to provide its specific member names (ECF No. 154-1 at n.1), but that membership includes individuals serving life sentences for crimes committed while juveniles as well as family members of such individuals. (ECF No. 1 at ¶ 16).
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distribution. Id. at 6-8. For the reasons detailed below, the State’s Motion for Protective Order Regarding Confidentiality of Discovery Material (ECF No. 154) is GRANTED in part and DENIED in part, and Plaintiffs’ Cross Motion Challenging Confidentiality Designation (ECF No. 166) is GRANTED in part and DENIED in part.
I. DISCUSSION Federal Rule of Civil Procedure 26(c)(1) empowers the Court, where appropriate, to limit the scope of discovery. The party moving for protection has the burden of establishing that protection is justified. See In re Wilson, 149 F.3d 249, 252 (4th Cir. 1998). Once so established, “the party seeking the materials then must establish that the information is sufficiently necessary and relevant to his case to outweigh the harm of disclosure.” Id. at 252. Nonetheless, this Court is conferred broad discretion “to decide when a protective order is appropriate and what degree of protection is required.” Baron Fin. Corp. v. Natanzon, 240 F.R.D. 200, 202 (D. Md. 2006).
A. Information In Prisoner “Case Records” The parties agree that information relating to specific prisoners includes sensitive and confidential information such as information concerning a prisoner’s victims, family, medical and mental health, criminal record, personal identifiers, disciplinary records, gang affiliation, housing, and security. (ECF Nos. 154-1 at 2 and 166 at 8). The parties, however, disagree on the appropriate means of protecting that sensitive information. The State argues limited distribution is appropriate for all documents “contained in the files maintained by the Governor, the Parole Commission, and the Division of Correction.” (ECF No. 154-1 at 2). Plaintiffs argue that such a broad designation will inevitably cause the blanket designation of the whole file and, as an alternative, suggest the designation of narrow categories of confidentiality and/or redaction.
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(ECF No. 166 at 8). In the Court’s view, the proper resolution falls somewhere between these two arguments.
The State asks this Court to include the following language in the order: Material provided in the course of discovery pertaining to named prisoners and designated as “Confidential” by the Defendants shall not be disclosed to a prisoner or a former prisoner, including a party, or to any other individual identified as a member of the MRJI, who is not the subject of the material designated as confidential. Confidential documents pertaining to a prisoner who is not the subject of the records may be disclosed to a prisoner or former prisoner, including a party, or to another individual identified as a member of the MRJI, with leave of court or with a release signed by the prisoner who is the subject of the record.
(ECF No. 154-1 at 6) (emphasis added). The State argues that such limited distribution will sufficiently protect prisoner’s privacy rights, preserve prison security, and safeguard the public. (ECF Nos. 154-1 at 6 and 168 at 4-5). Additionally, the State contends that the Plaintiffs’ ability to acquire releases from the prisoner alleviates any burdens caused by the limited production. Id. For example, the prisoner members of MRJI could presumably execute releases sharing their records with each other.
A main justification offered by the State for its proposed distribution restriction is that under Maryland law, the Division of Correction is required to compile and maintain a “case record” of each inmate containing: (1) a description and photograph of the inmate; (2) family history; (3) any previous record of the inmate; (4) a summary of the facts of each case for which the inmate is serving a sentence; and (6) the results of the physical, mental, and educational examination of the inmate required under state law. See Md. Corr. Servs. Code Ann., §§ 3601(a) and (c). The State further points out that the contents of a prisoner’s “case record” are confidential. (ECF Nos. 154-1 at 2-3 & 168 at 4-5); See Md. Code Ann., Corr. Servs. § 3-602; Short v. Bishop, 2016 WL 916429, at *4 (Md. Ct. Spec. App. Mar. 9, 2016). It is not entirely
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clear to the Court whether this same “case record” would also typically contain the additional items cited by the parties such as victim information, gang affiliations, disciplinary records and housing information or whether such items are maintained in some other record. But for the Court’s present purposes, its references to “case record” include not just the statutory definition but these additional items.3 Additionally, if such information is copied to others and is found in files maintained by the Governor, Division of Corrections or Parole Commission, it nonetheless maintains its protected status. That is, protected status accompanies the document/information, and not the file in which it is found.4
While statutory confidentiality does not bar discovery, like statutes can “be used as a basis to seek a protective order” for addressing “confidentiality concerns.” See Shriner v. Annapolis City Police Dep't, No. CIV.A. ELH-11-2633, 2012 WL 959380, at *4 (D. Md. Mar. 19, 2012) (quoting Mezu v. Morgan State Univ., 269 F.R.D. 565, 576 (D. Md. 2010)). Along with invoking statutory privacy concerns, the Declaration of Wayne Hill, interim Commissioner of the Maryland Division of Correction, cites an additional area of concern in that wider disclosure of prisoner records would “constitute an unwarranted invasion of privacy . . . and potentially compromise prison security and the safety of members of the public.” (ECF No. 1542 at ¶ 4). The State emphasizes that in a “prison context, information is currency,” and that the potential harms of disseminating prisoner information to other prisoners is “not speculation” but “would cause identifiable, specific harm.” (ECF No. 168 at 3)
As for the case records of individual prisoners (using this Court’s expanded definition of “case record” as explained above), the Court finds these arguments satisfy Defendants’ initial
3 The Court could envision similar types of materials, such as a pre-sentence report, that could incorporate some or all of the “case record” information and would, therefore, present the same types of concerns and should be treated similarly. 4 Likewise, as discussed in more detail below, the presence of a protected document within a file does not render the remainder of the file “protected” absent a separate justification.
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burden in seeking to limit the distribution of that information, to include documents outside the case record that specifically incorporate the same information. In its September 27, 2017 Memorandum Opinion, this Court acknowledged those concerns when addressing the implications of ordering the State to produce the confidential files of non-party prisoners to the current and former prisoners. (ECF No. 88 at 7). The Legislature’s concerns are understandable; absent consent, it is unlikely a prisoner would prefer that his or her file containing personal medical and mental health information, personal identifiers, details of his or her crime, disciplinary records, etc. in general distribution among his or her fellow inmates or their friends and family. Additionally, Defendants’ security concerns are not illusory as such information could form the basis for reprisals, prison gang recruitment or extortion. Moreover, Defendants are not blocking all distribution, but only seeking to prevent distribution from those who could potentially make untoward use of it. While the Plaintiffs have the right to reasonable discovery, the proposed restricted distribution accomplishes that goal by permitting Plaintiffs’ counsel (and experts) to review and gauge the relevance and importance of these case records while maintaining the State’s interest in confidentiality and prisoner and victim privacy.
In arguing that wider dissemination is nonetheless necessary so as to outweigh the concerns expressed above, Plaintiffs argue that the State’s proposed restriction prevents the party plaintiffs from assisting counsel, prevents parties from participating in hearings or trial, and otherwise frustrates the discovery process. (ECF No. 66 at 10-12). Instead, Plaintiffs suggest that the goals of maintaining confidentiality could be achieved through redaction and other “reasonable and measured efforts.” Id at 12. The Court is not convinced that restricting prisoner case records from wider distribution handicaps Plaintiffs’ ability to assist counsel. Plaintiffs’ have not presented a scenario where getting plaintiff input on a prisoner’s specific
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mental health condition or family history or other such information would be of assistance. Moreover, as noted above, plaintiffs and members of MRJI presumably could execute releases as to their own records and consent to share them with each other. Further, to the extent plaintiff input is essential as to any given record; leave of court can be requested. Similarly, although it is theoretically possible that plaintiffs might need to be excluded from portions of hearings or depositions where such prisoner case record information is being discussed, that can be dealt with on a case by case basis and does not, by itself, justify a blanket denial of the protection sought.
As for redaction, the highly sensitive and comprehensive nature of the information held within these case records, as well as the burdens imposed on the State by mass redaction, support the imposition of the State’s proposed provision. See Boyd v. Gullett, 64 F.R.D. 169, 178 (D. Md. 1974) (holding that “[b]ecause of the delicate information which may appear” in the discoverable police files, “only the plaintiffs' attorneys of record and designated para-legals and law students may see and consider any items discovered as a result of this opinion.”); see also Ellis v. Navarro, No. C 07-05126 SBA LB, 2012 WL 1294205, at *2 (N.D. Cal. Apr. 16, 2012) (holding that attorneys’ eyes only review of prison investigation files balanced plaintiffs’ needs for information with defendant’s needs for confidentiality).
Accordingly, the Court approves the proposed limited language with an important caveat. The proposed limiting language could be read as encompassing more than a prisoner’s “case record” (using the Court’s expanded definition) and documents specifically incorporating such information by use of the language, “material…pertaining to named prisoners.” (ECF No. 154-1 at 6). To be clear, a document is not entitled to “case record” protection simply because it contains the name of an individual prisoner or is contained within an individual prisoner’s
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physical case record file. A document is entitled to “case record” protection only if implicates the types of information referenced in §§ 3-601(a) and (c) or similar information as alluded to by the Court above. Conversely, an entire file is not entitled to “case record” protection simply because a “case record” document is found within it. The Court would not, for example, generally regard “blank check lists and forms” and “printouts from a variety of public sources such as Wikipedia” as deserving of confidentiality. (See ECF No. 166 at 9). If there are such documents or files that have been unjustifiably restricted, they are not covered by the Court’s order here, and should be redesignated to include a wider distribution.5 Thus, “material . . . pertaining to named prisoners” should be interpreted to be synonymous with “case record” and similar information as outlined by the Court.
The Court will now address whether such a restriction is appropriate as to other materials challenged by Plaintiffs.
B. Risk Assessment Tests and Tools The State also requests similar limited distribution for the copyrighted risk assessment tests and tools to prevent public dissemination and harm to the test’s integrity. (ECF No. 154-1). To do so, the State proposes the inclusion of the following provision in any protective order:
Material pertaining to risk assessment tools and testing that is provided in the course of discovery and that is designated as confidential by the Defendants shall not be disclosed to a prisoner or a former prisoner, except as previously ordered by this Court on September 27, 2017 (ECF No. 88 at pages 7-8) (directing the State to produce six risk assessments (three juvenile lifers and three adult lifers) with the personally-identifiable information redacted). (Id. at 6).
5 To be clear, many such records may still require some level of confidentiality, but should not carry a de facto “attorneys’ eyes only” designation absent some other asserted basis for protection.
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Plaintiffs assert that the State’s reliance on copyright law is misplaced and this Court agrees. As its only support, the State provides the Declaration of Robert Ott, Ph.D., in which he states that “[t]ests subject to copyright should not be made available to the general public in order to protect the integrity of the test.” (ECF No. 154-3 at ¶ 3). This statement alone does not show why the documents should be withheld from Plaintiffs, or how copyright law would justify “attorneys’ eyes only” production under these circumstances. There is no claim that the tests and tools are proprietary to the State; they appear to be tests that are widely used and can even be found and researched on the internet. Sufficient protection exists under the general confidentiality terms of the protective order and the Court finds no additional limitation on distribution is warranted. Accordingly, the State’s proposed provision is not approved for inclusion in the protective order.6
C. Personnel Records The State originally proposed a provision to effectively prevent personnel record disclosure to “a prisoner or a former prisoner, including a party[.]” (ECF No. 154-1 at 7). Plaintiffs argued that there is no basis for such a provision and any personnel records could be easily redacted and produced. (ECF 166 at 8). In Reply, the State offered to produce the personnel documents of Drs. Ott, Fleming, and Guilbault with certain information redacted. The Court approves production with the proposed redactions.
D. Depositions Although only alluded to in the Plaintiffs’ Response, (ECF No. 166 at 11), the parties disagree as to how the confidentiality will impact depositions, the rights of the parties to attend depositions, and the ability to even hold depositions due to security concerns. (ECF Nos. 146
6 This shall have no effect on this Court’s previous order of September 27, 2017 regarding providing a sample of six completed risk assessments of specific prisoners with personally-identifiable information redacted. (ECF No. 88 at 7-8).
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Case 1:16-cv-01021-ELH Document 184 Filed 10/17/18 Page 10 of 10
and 147). This Court instructs the parties to confer and resolve what issues that they can. If further assistance is required, the parties should contact the Court by docketed letter well in advance of the disputed deposition. The Court is hopeful that its assistance will not be required though the good faith cooperation of the parties.
II. CONCLUSION For the reasons stated herein, the State’s Motion for Protective Order Regarding Confidentiality of Discovery Material (ECF No. 154) is GRANTED in part and DENIED in part and Plaintiffs’ Opposition and Condition Cross Motion Challenging Confidentiality Designation (ECF No. 166) is GRANTED in part and DENIED in part. The Court’s Protective Order reflecting this Memorandum will be separately docketed.

Dated: October 17, 2018

/s/ J. Mark Coulson United States Magistrate Judge

10

 
 Case 1:16-cv-01021-ELH Document 188 Filed 10/25/18 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

MARYLAND RESTORATIVE JUSTICE *

INITIATIVE, et al.

*

Plaintiffs

*

v.

Civil Case No. 16–01021–ELH

*

HOGAN, et al.

*

Defendants.

* * * * * * * * * * *

MEMORANDUM OPINION

This case concerns a challenge to the constitutionality of Maryland’s parole system as

applied to individuals who received sentences of life imprisonment with parole for offenses

committed as juveniles. The Maryland Restorative Justice Initiative (“MRJI”) filed suit on

behalf of Calvin McNeill, Nathaniel Foster, and Kenneth Tucker (collectively, “Plaintiffs”)

against four Maryland officials in their official capacities: Governor Larry Hogan; David

Blumberg, Chair of the Maryland Parole Commission; Stephen Moyer, Secretary of the

Maryland Department of Public Safety and Correctional Services; and Dayena M. Corcoran,

Commissioner of the Maryland Division of Correction, (collectively, the “State”).

This case was referred to me for resolution of all discovery and related scheduling

matters pursuant to 28 U.S.C. § 636 and Local Rule 301. (ECF No. 85). Now pending is

Plaintiffs’ Motion to Compel, complaining of the State’s insufficient and incomplete production

of documents. (ECF No. 172). The issues are briefed and no hearing is necessary. Loc. R. 105.6

(D. Md. 2016). For the reasons stated below, Plaintiffs’ Motion to Compel is GRANTED in part

and DENIED in part.

I. Timeframe for Relevant Discovery

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On September 27, 2017, this Court issued a Memorandum Opinion concerning many of the issues before it today, including the timeframe for relevant discovery, attorney-client privilege, and executive privilege. (ECF No. 88). When addressing the Plaintiffs’ production requests dating back to 1995 and the State’s proposal to produce documents dating back to 2004, this Court explained that:
Even if, for the sake of argument, current policy was influenced by prior administrations, it is the policy itself and its current implementation by these specific defendants that is at issue in this case. By agreeing to provide more than a dozen years of information, the State’s position is reasonable and proportional to the needs of the case, and is therefore compliant with the Federal Rules of Civil Procedure. (Id. at 2). The State, however, recently informed Plaintiffs that “any documents in the files of former non-defendant Governors, whether privileged or non-privileged, are irrelevant to the claims and defenses in this action . . . .” and that it will only produce records of the current Governor. (ECF No. 172-8 at 3). In support of its decision, the State points to the changes to the legal landscape caused by Executive Order 01.01.2018.06 (setting the standards the Governor now must apply in considering juvenile lifers for parole). The State also cites the Maryland Court of Appeals’ decision in Carter, Bowie, & McCullough v. State, __ Md. __, Nos. 54, 55, & 26, Sept. Term 2017, 2018 WL 4140672 (Aug. 29, 2018) where the Court of Appeals denied a similar constitutional challenge to the State’s parole system by individuals receiving life sentences as juveniles, holding that “the laws governing parole of inmates serving life sentences in Maryland, including the parole statute, regulations, and a recent executive order adopted by the Governor, on their face allow a juvenile offender serving a life sentence a ‘meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.’” These
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developments—the State argues—are even more reason to focus on the current system of dealing with parole requests as opposed to what may have occurred under past administrations given the prominence of Governor Hogan’s Executive Order in the Maryland Court of Appeals’ reasoning. The State also contends—having now reviewed and produced documents for the current administration—that the high burden and expected low yield (due to executive and attorneyclient privilege) significantly outweighs the relevance of documents related to past administrations.
For their part, Plaintiffs argue that the change of heart by the State in limiting the scope of its production amount to a much-delayed objection to discovery more than a year after the fact, constituting a waiver for which no good cause exists. Additionally, Plaintiffs argue that Governor Hogan’s Executive Order (and the Court of Appeals’ reliance on it) does not justify narrowing the scope of discovery. (ECF No. 172 at 6-7).
In the Court’s view, this dispute cannot be decided simply by employing a waiver analysis. To be sure, a party’s prior representation that a certain scope of discovery would govern could constitute a waiver of a later objection to that scope. In such a case, the Court would then engage in a “good faith” analysis to determine whether there has been a sufficient change in circumstance that would excuse such a waiver. Hall v. Sullivan, 231 F.R.D. 468, 47374 (D. Md. 2005). However, as noted in Mancia v. Mayflower Textile Servcs., regardless of the outcome of this waiver analysis, the Court is tasked with its own obligation to evaluate the benefits and burdens of the requested discovery. 253 F.R.D. 354, 363 (D. Md. 2008). This is consistent with the Court’s duty to independently construe, administer, and employ discovery rules “to secure the just, speedy and inexpensive determination of every action and proceeding.” Fed. R. Civ. P. 1. In completing its obligations of active case management, this Court must
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always measure discovery against relevance to the claims and defenses and the ever present “yardstick of proportionality.” Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 523 (D. Md. 2010) (citing Fed. R. Civ. P. 26(b)(2)(C)). Whether it is pursuant to a party’s motion or on its own initiative, this Court “must limit the frequency or extent of discovery” if “the discovery sought is unreasonably cumulative” or “the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.” Fed. R. Civ. P. 26(b)(2)(C)(i)–(iii). In the Court’s view, its duties in this regard are ongoing and not discharged through a single static assessment of the case. Rather, the Court is required to reassess the above balancing as a case evolves.
Following Judge Hollander’s ruling on the State’s Motion to Dismiss, (ECF No. 65), the two causes of action before the Court are Count 1 – Violation of the Eight Amendment Prohibition Against Cruel and Unusual Punishment and 42 U.S.C. § 1983 against all Defendants, and Count 2 – Violation of Article 25, Md. Decl. of Rights Prohibition Against Cruel or Unusual Punishment against all Defendants. (ECF No. 1). The basis of both are that the State “operate[s] a parole scheme that is indistinguishable from a system of ad hoc executive clemency in which grants of release are exceptionally rare, are governed by no substantive or enforceable standards,” and that this scheme “as applied to Plaintiffs, has not afforded them a meaningful and realistic opportunity for release.” (ECF No. 1 at ¶¶ 167-69, 174-177). By way of relief, Plaintiffs request that the Court declare the following unconstitutional: (1) the “parole scheme” operated by the State; (2) the law granting the Governor’s authority over the parole process; and (3) the denial of Plaintiffs and other juvenile lifers a meaningful and realistic opportunity for
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release. (Id. at 59-60). Plaintiffs also requests that this Court issue an injunction “immediately to discontinue these practices and take remedial steps to address their past illegal conduct, by granting Plaintiffs, and others represented by the Maryland Restorative Justice Initiative, a meaningful and realistic opportunity to demonstrate their readiness for release.” (Id. at 60-61). In other words, Plaintiffs ask the Court to assess the current “parole scheme” (to include the Governor’s role) against the relevant constitutional principles and, if found infirm, order these Defendants to change their practices so as to provide Plaintiffs a meaningful opportunity for release.
Plaintiffs assert that their case is against the Office of the Governor and that they are entitled to “pursue discovery . . . regardless of who happens to be Governor.” (ECF Nos. 172 at 4 and 181 at 6). As noted above however, this Court previously expressed its skepticism about the relevance of such materials. It would appear to the Court that the only potential basis to look beyond the current administration is to search for a hidden policy or standard practice unwaveringly followed by each successive administration (in uncharacteristically bipartisan fashion) to deny juvenile offenders meaningful opportunities for parole. (ECF No. 84-3 at 13). Such a scenario seems farfetched. But even if such a historical policy was the motivation for the current Defendants, Plaintiffs do not adequately explain why its application by prior administrations would be sufficiently relevant in this case, given that the Complaint is limited to prospective claims for relief focused on current implementation of current policy (as now supplemented by Governor Hogan’s Executive Order). In short, Plaintiffs have simply not shown how the theoretical conduct of a former administration would be sufficiently probative of alleged unconstitutional conduct by the current Defendants.
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This is especially so given the low yield and high burden involved with an expanded scope. Plaintiffs have injected their claims into the heart of executive decision making and, unsurprisingly, the State has effectively asserted and defended claims of executive and attorneyclient privilege. With this as a guide, the Court suspects that files of past governors, like those of the current administration, will spark numerous disputes over privilege and ultimately yield little to no usable non-privileged information. Moreover, the State has articulated the burdens it will face with detail. To date, the State has spent an estimated 300 hours responding to Plaintiffs’ requests, reviewing for responsiveness and privilege, redacting, and preparing privilege logs. (ECF No. 177-8 at 1). This already high estimate does not include any time spent by the Governor’s Office of Legal Counsel in collecting and preliminarily reviewing the documents. The State projects that producing the files maintained by Governors Ehrlich and O’Malley would require review of several thousand documents, redaction of privileged information, the preparation of a privilege log, and the assistance of representatives from the prior administrations. The State additionally asserts that if required to search for electronic documents and information from the current timeframe it would, at a minimum, take an additional 500 hours to conduct the electronic searches, compile the thousands to hundreds of thousands of emails, review for responsiveness, stamp, redact, and, if necessary, detail within a privilege log. Lastly, the State asserts that the majority of the responsive documents were generated and maintained by the Governor’s Office of Legal Counsel and “would be heavily, if not entirely, redacted.” (ECF No. 177-8).
While the importance of the issues at hand cannot be overstated, the importance of this expansive discovery as to resolving these issues, in the Court’s opinion, is minor at best. Plaintiffs’ impassioned arguments on how the time complying with discovery requests is merely
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Case 1:16-cv-01021-ELH Document 188 Filed 10/25/18 Page 7 of 13
a fraction of that Plaintiffs have spent incarcerated it not lost on the Court. (ECF No. 181 at 8). But the question before the Court in deciding a discovery dispute is not freedom or incarceration. Nor is it discovery versus no discovery. Plaintiffs have requested and received vast amounts of information. Over the course of discovery the State has produced at least 248 parole files for inspection, thousands of electronic copies, redacted versions of the lifer files maintained by the Governor, additional files maintained by the Governor on a rolling basis, and another round of document production. (ECF No. 177 at 20). Rather, the most pertinent question is if the burdens of complying with this timeframe outweigh the likely benefit. In light of the burdens articulated by the State and the minimal possibility of discovering any information of any significant relevance to the claims of the Plaintiffs, this Court will narrow the scope of permissible relevant discovery as to the actions of the Governor to the administration of Governor Hogan. Any already produced pre-Hogan discovery may be utilized by Plaintiffs, but the State no longer must produce any documents concerning the Governor’s office from outside of the ordered timeframe of relevance. II. Attorney Work Product and Attorney-Client Privilege
Plaintiffs argue that the State’s September 14, 2018 privilege log includes many defective assertions. Specifically, Plaintiffs argue that some entries are defective because they fail to identify all authors and recipients and others fail to sufficiently assert attorney-client privilege. The State contends that its assertions of attorney work product and attorney-client privilege are sufficient and provides the affidavits of Mr. Mincher, Ms. Goins-Johnson, and Ms. Bartholomew as an evidentiary basis as support. (ECF Nos. 177-3, 4, 5). In Reply, Plaintiffs claim that the affidavits do not withstand scrutiny and the State’s privilege log fails to sufficiently identify each named individual. (ECF No. 181 at 4-5). The Court only partially agrees with the Plaintiffs.
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Case 1:16-cv-01021-ELH Document 188 Filed 10/25/18 Page 8 of 13
When information is withheld by claiming privilege, the withholding party must: “(i) expressly make the claim; and (ii) describe the nature of the documents, communications, or tangible things not produced or disclosed--and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.” Fed. R. Civ. P. 26(b)(5)(A); see also Discovery Guideline 10 (D. Md. 2016). This process is achieved using privilege logs, and a sufficient one identifies “each document withheld, information regarding the nature of the privilege/protection claimed, the name of the person making/receiving the communication, the date and place of the communication, and the document's general subject matter.” Elat v. Ngoubene, No. CIV. PWG-11-2931, 2013 WL 4478190, at *4 (D. Md. Aug. 16, 2013) (citing Discovery Guideline 10.d.; Paul W. Grimm, Charles S. Fax, & Paul Mark Sandler, Discovery Problems and Their Solutions, 62–64 (2005)).
If the claimed privilege is challenged, the asserting party must establish an evidentiary basis for the privilege. Elat, 2013 WL 4478190, at *5. And if still contested, the dispute may be submitted to the court for review. Id. Currently, we are within this third step where the “party asserting privilege has the burden of demonstrating its applicability.” N.L.R.B. v. Interbake Foods, LLC, 637 F.3d 492, 501 (4th Cir. 2011).
First, Plaintiffs’ argument that all items on a privilege log must detail any drafters, receivers, senders, etc. or be legally insufficient is too stringent an application. Discovery Guideline 10 outlines that sufficient assertions of privilege differ between oral communications and documents. See Loc. R. App. A Guideline 10.d.ii.b. In oral communications, the names of the maker and those present are of particular importance. Whereas, the standard for asserting privileges for documents asks for: “(i) the type of document; (ii) the general subject matter of the document; (iii) the date of the document; and (iv) such other information as is sufficient to
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Case 1:16-cv-01021-ELH Document 188 Filed 10/25/18 Page 9 of 13
identify the document including, where appropriate, the author, addressee . . . .” (Id.) (emphasis added).
With this guidance, the Court finds that failure to include a document’s author or receiver is not per se insufficient. The objective is to provide enough information to determine whether a claimed privilege can be sustained, without revealing the very information claimed to be privileged. This Court holds that the State has sufficiently done so in certain cases and, in keeping with its September 27, 2017 Memorandum Opinion, (ECF No. 88 at 5-6), the Court will uphold the privilege of Bates Nos. S 1176, 1179; U 18; W 5, 6, 25-26, 27-33, 34-36, 47; and X 5-9, 14-17.
As for the remainder, the Court agrees with Plaintiffs that there is insufficient information to determine the identities of all individuals named within the privilege logs. After review of the record before it, the Court cannot discern whether the involvement of Thomas Stack, Lisa Smith, Lauren Lipscomb, A. Chase, or G. Adams would cause third-party waiver of the asserted privilege. Accordingly, the Court orders the State to provide Plaintiffs with a list of individuals and corresponding jobs named within the privilege log by November 5, 2018 and/or additional narrative that would justify the assertion of privilege. If after receipt of this list, Plaintiffs still wish to challenge the asserted privilege they may do so by letter to the Court. III. Executive Privilege
Plaintiffs argue that the State erroneously asserted executive deliberative process privilege for factual information and otherwise failed to sufficiently substantiate the assertions. (ECF No. 172 at 6-7). Plaintiffs also maintain that recommendations concerning parole made more than 180 days ago are non-privileged and that documents circulated outside of the Governor’s office must be produced.
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Case 1:16-cv-01021-ELH Document 188 Filed 10/25/18 Page 10 of 13
As previously outlined by this Court, the focus of the deliberative process privilege is protecting against disclosure of “letters, memoranda or similar internal government documents containing confidential opinions, deliberations, advice or recommendations from one governmental employee or official to another official for the purpose of assisting the latter official in the decision-making function.” Johnson v. Baltimore City Police Dept., No. CIV. ELH–12–2519, 2013 WL 497868, *6 (D. Md. Feb. 7, 2013) (internal citations omitted). In order for an objection based on the deliberative process privilege to apply, a document must be both predecisional and deliberative. “Predecisional documents are those prepared in order to assist an agency decisionmaker in arriving at his decision and deliberative documents are those that reflect the give-and-take of the consultative process by revealing the manner in which the agency evaluates possible alternative policies or outcomes.” Solers, Inc. v. IRS, 827 F.3d 323, 329 (4th Cir. 2016).
After having reviewed the Parties’ arguments and the evidentiary basis provided by the State, this Court will uphold the majority of the State’s claims of privilege. First, the State has sufficiently shown to the Court that those documents challenged as factual are properly protected under the executive deliberative process privilege and, to the extent that any contain factual information, that information is inextricably intertwined except for one document discussed below. Second, to the extent Plaintiffs contend that some documents where “circulated outside” of the Governor’s Office and must be produced, this Court disagrees. Deliberative assistance by agents of the executive is contemplated and protected under executive privilege. Here, the challenged communications are between officials of the executive branch evaluating possible policies and thus merit protection. Third, simply because the Office of the Governor potentially came to a final parole decision, does not nullify deliberative process protection of predecisional
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documents and communications. Instead, the State is only expected to “produce the portions of the already-decided [files] that contain only factual information.” (ECF No. 88 at 5). Therefore, the Court upholds the privilege of Bates Nos. R 30, 35, 851-77, 979-80, 1189-91, 1310-13, 1344; W 37, 38-40, 41-42, 45-46, 47, 48-49, 52-53, 54-55, 62-64; X 1-2, 22-26; L 1, 37-38, 2196-97, 3525-26, 3559-61, 3680-82, and 3795-96.
This Court is not prepared to accept the State’s arguments in regards to Bates No. W 24. While “Statistics prepared by the Office of Legal Counsel for the Governor” may include material utilized in deliberations and was created by an office frequently cloaked in privilege, raw statistics do not rise to the level of predecisional documents protected by deliberative process privilege. Therefore, Bates No. W 24 must be produced.
Last, the Court cannot discern the identities of some individuals noted within the privilege log. Thus, the Court reserves judgement on whether Bates Nos. S 929, 970, 972, 975, 1183-88, 1304-09, 1314-25, 1330; X 3-4, and 13 are privileged due to the possible presence of third parties and waiver. As ordered above, the State is to provide Plaintiffs with a list of individuals and corresponding jobs named within the privilege log by November 5, 2018 along with any narrative necessary to justify the assertion of privilege. If after receipt of this list, Plaintiffs still wish to challenge the asserted privileges they may do so by letter. IV. Seventeen (17) Files
In its Reply, Plaintiffs claim that the State is withholding seventeen (17) parole files for commutation consideration in an attempt to take advantage of “the very dysfunction” being challenged to prevent Plaintiffs from “discovering the documents to which they are entitled.” (ECF No. 181 at 1). While they need not be produced while pending before the Governor, this Court notes that in September 27, 2017, seventeen (17) files were also pending before the
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Governor. (ECF No. 88 at 5). If these are the exact same files, then the Court instructs the Parties to confer and determine if there is a means agreeable to both for the production of factual information. If they are not, then Plaintiffs will have to wait for the Governor’s decision. V. Emails
Plaintiffs claim that the State failed to search the email accounts of the other defendants for responsive communications and documents. (ECF No. 172 at 10). The State contends that it properly complied by only producing the Governor’s emails with the Parole Commission because document request no. 6 is the only request that asks for “correspondence,” whereas all the other requests did not ask for correspondence. (ECF No. 177 at 22). In response, Plaintiffs argue that each request asked for “Documents,” and the requests defined “documents” as “synonymous in meaning and equal in scope to the usage of the term ‘documents’ in Fed. R. Civ. P. 34(a) . . . . Unless, the producing party demonstrates under burden . . . electronic mail is included within the definition of the term “document.” (ECF Nos. 172-2 at 3 and 8).
In the Court’s view, the State’s reading is too narrow. Based on the time limits that the Court outlined for the scope of discovery above, the State will produce responsive non-privileged emails and attachments from the named defendants not already produced. VI. Minutes
Plaintiffs claim that the State did not produce the minutes generated during Maryland Parole Commission meetings. (ECF No. 172 at 10). Plaintiffs ask that this Court order the production of those minutes and all other minutes from “any case management department or group and any other group of individuals responsible for revising or implementing Maryland’s parole scheme for juvenile lifers.” (Id.).
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The State concedes the existence of the minutes and offers to “produce copies of the minutes of the Parole Commission’s open and closed meetings from January 1, 2016, to date, that are responsive . . . as well as copies of the minutes of Division of Correction Case Management meetings held after February 6, 2018, at which juvenile lifer classification was discussed.” The State concludes by saying that, if privileged and non-responsive information is redacted, a privilege log and supporting affidavit will accompany any production.
The State’s proposal is reasonable, but in light of the above, this Court will expand the scope of minutes offered to the minutes of the Parole Commission’s open and closed meetings, and of Division of Correction Case Management meetings held since the current Governor took office. In the event that privileged information is redacted, this Court further instructs the State to provide any necessary privilege logs and supporting affidavits. VII. Conclusion
For the foregoing reasons, Plaintiffs’ Motion to Compel (ECF No. 172) is GRANTED in part and DENIED in part. A separate Order shall follow.

Dated: October 25, 2018

/s/ J. Mark Coulson United States Magistrate Judge

13

 
 Case 1:16-cv-01021-ELH Document 215 Filed 07/15/19 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

MARYLAND RESTORATIVE JUSTICE INITIATIVE, et al.
Plaintiffs, v. HOGAN, et al.
Defendants.

*
*
* Civil Case No. 16–01021–ELH
*
*
* * * * * * *

MEMORANDUM OPINION

This case concerns a challenge to the constitutionality of Maryland’s parole system as

applied to individuals who received sentences of life imprisonment with parole for homicide

offenses committed as juveniles. The Maryland Restorative Justice Initiative (“MRJI”) filed suit

on behalf of Calvin McNeill, Nathaniel Foster, and Kenneth Tucker (collectively, “Plaintiffs”)

against four Maryland officials in their official capacities: Governor Larry Hogan; David

Blumberg, Chair of the Maryland Parole Commission; Stephen Moyer, Secretary of the Maryland

Department of Public Safety and Correctional Services; and Dayena M. Corcoran, Commissioner

of the Maryland Division of Correction, (collectively, the “State”).

This case was referred to me for resolution of all discovery and related scheduling matters

pursuant to 28 U.S.C. § 636 and Local Rule 301. (ECF No. 85). Now pending before the Court

is Plaintiffs’ Motion for Reconsideration of September 27, 2017 Order Regarding Production of

Risk Assessments. (ECF No. 208-1). The issues are fully briefed, (ECF Nos. 208-15 and 208-

21), and no hearing is necessary. See Loc. R. 105.6 (D. Md. 2018). For the reasons below,

Plaintiffs’ motion will be DENIED.

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I. Background On September 27, 2017, this Court granted in part and denied in part Plaintiffs’ first motion
to compel concerning a number of discovery requests. (ECF No. 88). In doing so, the Court declined to compel a full response to Request for Production 4: “[a]ll documents relating to all risk assessments conducted on any Lifer on or after January 1, 1995.” Despite the Plaintiffs’ insistence that the “Risk Assessments” are necessary for them to fully understand the parole/commutation process in Maryland, the Court declined to order the request in full. Along with sharing the State’s concerns over producing such highly sensitive personal information, the Court acknowledged that Plaintiffs’ suit challenges the process as a whole, and not as it was applied to any one individual. That is, although the Court agreed that Plaintiffs should have an understanding of the kinds of information being collected on the Risk Assessment, the particular responses for any given inmate were less relevant, intrusive, and burdeonsome. Accordingly, the Court ordered that a sampling of the Risk Assessment would impart what was germane while minimizing exposure of highly sensitive information and the accompanying burdens of production. Specifically, the Court ordered the State to produce six sample Risk Assessments (three from juvenile lifers and three from adult lifers) with the personally-identifiable information redacted.
The six assessments were produced in approximately May 2018. (ECF No. 208-3 at 4). In doing so the State provided the Risk Assessments of a juvenile and adult lifer who had been paroled following commutation by the Governor; the Risk Assessments of a juvenile and adult lifer who had been disapproved for commutation by the Governor; and the Risk Assessments of a juvenile and adult lifer whom the Commission had declined to recommend for parole or commutation. (ECF No. 208-15 at 4). Plaintiff now argues that circumstances necessitate reconsideration and, ultimately, the production of “at least 20% of the juvenile lifer assessments responsive to MRJI’s
2

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discovery requests, to be selected by Plaintiffs.” (ECF No. 208-1 at 2) (emphasis retained). This Court disagrees.
II. Standard of Review Under Federal Rule of Civil Procedure 54(b), “any order or other decision, however
designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties” may be revisited by the court at any time before an entry of final judgment. Fed. R. Civ. P. 54(b). While Rule 54 does not set forth the standard for reconsideration of interlocutory orders, such as the discovery ruling at issue here, the Fourth Circuit has held that a motion for reconsideration under Rule 54 is not subject to the same “strict standards” applicable to motions for reconsideration of a final judgment. Am. Canoe Ass'n v. Murphy Farms, Inc., 326 F.3d 505, 514 (4th Cir. 2003). Despite this relative leniency, “most courts have adhered to a fairly narrow set of grounds on which to reconsider their interlocutory orders and opinions,” and will reconsider an interlocutory order only where: “(1) there has been an intervening change in controlling law; (2) there is additional evidence that was not previously available; or (3) the prior decision was based on clear error or would work manifest injustice.” Cezair v. JPMorgan Chase Bank, N.A., No. DKC-13-2928, 2014 WL 4955535, at *1 (D. Md. Sept. 30, 2014) (citations omitted).1 III. Discussion
Plaintiffs argue that circumstances have changed to a point that justifies reconsideration of this Court’s September 27, 2017 decision as to the Risk Assessments. Specifically, Plaintiffs assert
1 Furthermore, Local Rule 105.10 states that “any motion to reconsider any order issued by the Court shall be filed with the Clerk not later than fourteen (14) days after entry of the order.” Local Rule 105.10 (D. Md. 2018). While technically untimely, neither party has seriously argued or briefed the issue. Despite the lack of clear triggering event, the Court will exercise its discretion and deem the motion timely.
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that additional production is warranted because circumstances now reveal just how central of a role the assessments play in the process, and the past concerns over confidentiality no longer exist because of the protective order. Plaintiffs request that this Court alter the ruling to instead order the production of “at least 20% of the juvenile lifer risk assessments responsive to MRJI’s discovery requests, to be selected by Plaintiffs.” (ECF No. 208-1 at 2) (emphasis retained).
The State argues that the changing landscape of this case does everything but justify more discovery. To the contrary, the State points to the burdens of making such a production and argues that it is patently disproportional when compared to the recent appellate decisions concerning the subject matter of this case, as well as that changing statuses of the Plaintiff’s themselves.2 Lastly, the State contends that the burdens of production are disproportional to what is sought; if this case is about the process as a whole, a massive sample size (such as “at least 20%”) to review particular data for specific inmates’ situations is not justified.
While arguments of proportionality have some weight in any discovery matter, the starting point for a motion for reconsideration of an interlocutory order is whether Plaintiffs have articulated any compelling reason for reconsideration in light of the standard.
First, Plaintiffs do not point to any intervening changes in the controlling law. Second, Plaintiffs do not supply any new evidence that would cause this Court to reconsider its ruling. Simply put, Plaintiffs argue that the Risk Assessments are far more significant than initially believed such that many more should be produced. The Court does not see these assertions as
2 More specifically, the State recently filed a Motion for Leave to File a Motion for Summary Judgment and to Stay Discovery on the grounds that the Fourth Circuit’s recent decision in Bowling v. Director, Va. Dep’t of Corr., 920 F.3d 192 (2019) is dispositive of Plaintiffs’ case. (ECF No. 213). This motion is not yet ripe and will be decided by Judge Hollander. Additionally, the State points to the changing conditions of the Plaintiffs as reason not to expand the scope of discovery this late in the game. Simply put, one plaintiff is set to be paroled in six months, another was approved for parole and is awaiting a final decision by the Governor, and the last is up for consideration again in nine months. While such developments may be relevant down the line, they have not yet come to pass and are best left to Judge Hollander to consider.
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necessarily connected. The fact that Risk Assessment as a tool in the parole process are more prominent does not address why the sample assessments already provided are insufficient.
Lastly, this Court does not view Plaintiffs’ expert’s input, the passage of the protective order, or allegations of “gaming the system” as amounting to “clear error or . . . manifest injustice” in need of correction.
Plaintiffs’ need a larger “sample size” for an expert is unpersuasive for several reasons. First, the argument could have easily been made when they first moved to compel in 2017. Like now, Plaintiffs argued the grave importance of these assessments, so much so that the Court is hard-pressed to believe that they, just now, determined that they would like an expert “to extrapolate” their methodology and would thus need a larger sample size. Secondly, the Court believes that Plaintiffs do and could have access to additional assessments without having to go through the burdens of producing a fifth of them all. Both parties have conceded that any lifer subject to a Risk Assessment can get either a copy or summary of that assessment. Presumably, Plaintiffs have their own. And conceivably, the “more than 100 juvenile lifers” whose interests Plaintiffs contend they are asserting (ECF Nos. 65 and 208-21) could also acquire and supply all the assessments Plaintiffs could need. Accordingly, none of the arguments concerning “sample size” justify reconsideration.
As for the Protective Order, (ECF No. 185), it admittedly does dampen some of the confidentiality concerns behind this Court’s September 27, 2017 order. But confidentiality was not this Court’s only consideration. By Plaintiffs’ own arguments then and now, this case is not about any given individual, but about the process. This Court ordered a limited production of Risk Assessments to give Plaintiffs “some insight into the types of information collected and its potential role in the process.” (ECF No. 88) at 7). By all appearances Plaintiffs’ gained this desired
5

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insight, in that now they assert the need for Risk Assessments with more detail then when done in 2017. Nevertheless, none of that new detail explains to the Court how the production of more assessments would provide for them more information, let alone more relevant and necessary information. Acquiring the sought understand of the Risk Assessments does not now justify the production of “at least 20% of the juvenile lifer risk assessments responsive to MRJI’s discovery requests, to be selected by Plaintiffs.”3 (ECF No. 208-1) (emphasis removed).
The Court is similarly unpersuaded by Plaintiffs’ claims that the State “gam[ed] the system” or “cherry picked” in their production. This Court’s order did not compel the production of six reports at the different phases of the parole/commutation process. However, because it has been Plaintiffs argument since day one that the process as a whole is unconstitutional, the State produced a report from each stage of the process. This seems both fair and reasonable. Plaintiffs still speculate that the assessments produced are inaccurate outliers, but they do so without citation or support. Moreover, the Court has difficulty swallowing Plaintiffs’ allegations that the State somehow “cherry-picked” while simultaneously arguing that permitting Plaintiffs to hand pick a sample of 20% of all juvenile lifer risk assessments would in no way result in selection bias. While only requesting 20% seems benevolent at first blush, the additional requirement of Plaintiff selecting their own 20% would result in quite a different outcome. Unless Plaintiffs plan to select at random,4 then their request would effectively require the State to produce all assessments in a manner that would then permit the Plaintiffs to select their desired 20%. Not only do Plaintiffs’ ungrounded allegations of “cherry picking” or “gaming the system” not justify reconsideration,
3 Notably, neither party elaborated as to what this “20%” would entail. Considering the expansive date range at play and how Plaintiffs argue that the three produced represent less than “1% of all juvenile lifers” (ECF No. ECF No. 2083 at 6), one begins to suspect that any production of “at least 20%” could constitute hundreds of assessments, all needing review and redaction. 4 Which is unlikely given that one of the criteria listed by Plaintiffs in their brief would be the avoidance of “stale risk assessments.” It is therefore foreseeable that determining the existence of such “stale” reports would take some degree of review.
6

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but their proposed alternative is overly burdensome and disproportional as to what can be conceivably learned by the production of more assessments.
Despite nearly two years, Plaintiffs are simply attempting to relitigate the underlying ruling. Nothing presented to the Court now has emerged since the order. It either could have been argued then but was not. Or, is now being argued with more detail. Either way, reconsideration is not justified. See Coulibaly, 2011 WL 6837656, at *2 (denying reconsideration where the “motion could not prevail because they seek either to relitigate the same issues addressed by the opinion deciding the motions to dismiss or to introduce new arguments that they failed to raise previously. These are not appropriate grounds for reconsideration.”) IV. Conclusion
For the foregoing reasons, Plaintiff’s Motion for Reconsideration, (ECF No. 208-1), is DENIED. A separate Order shall follow.

Dated: July 15, 2019

/s/ J. Mark Coulson United States Magistrate Judge

7

 
 Case: 1:16-cv-1021 As of: 02/04/2020 02:15 AM EST 1 of 24
CASREF,STAYED
U.S. District Court District of Maryland (Baltimore) CIVIL DOCKET FOR CASE #: 1:16−cv−01021−ELH

Maryland Restorative Justice Initiative et al v. Hogan et al Assigned to: Judge Ellen L. Hollander Referred to: Magistrate Judge J. Mark Coulson
Magistrate Judge A. David Copperthite (Settlement) Demand: $0 Cause: 28:1331 Constitutionality of State Statutes
Plaintiff

Date Filed: 04/06/2016 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Maryland Restorative Justice Initiative

represented by Barry J Fleishman Pillsbury Winthrop Shaw Pittman LLP 1200 17th Street, NW Washington, DC 20036 202−663−8079 Fax: 202−663−8007 Email: barry.fleishman@pillsburylaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Deborah A Jeon American Civil Liberties Union of Maryland Foundation 3600 Clipper Mill Rd Ste 350 Baltimore, MD 21211 14108898555 Fax: 14103667838 Email: jeon@aclu−md.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sonia Kumar ACLU of Maryland 3600 Clipper Mill Road, Suite 350 Baltimore, MD 21211 410−889−8555 Fax: 410−366−7838 Email: kumar@aclu−md.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alexander Haywood Merritt Wiley Rein LLP 1776 K Street, NW Washington, DC 20006 202−719−3571 Email: amerritt@wileyrein.com TERMINATED: 02/13/2018

Ashley−Anne Lopez Criss Wiley Rein LLP 1776 K St NW Washington, DC 20006 202 719−3565 Fax: 202 719−7049 Email: acriss@wileyrein.com ATTORNEY TO BE NOTICED

Charles C Lemley Wiley Rein LLP

Case: 1:16-cv-1021 As of: 02/04/2020 02:15 AM EST 2 of 24

1776 K St NW Washington, DC 20006 12027197000 Fax: 12027197049 Email: clemley@wileyrein.com ATTORNEY TO BE NOTICED

Gary Scott Ward , Ward Wiley Rein LLP 1776 K Street NW Washington, DC 20006 202−719−7571 Fax: 2027197049 Email: gsward@wileyrein.com ATTORNEY TO BE NOTICED

George Emil Petel Wiley Rein LLP 1776 K Street NW Washington, DC 20006 202−719−3759 Fax: 202−719−7049 Email: gpetel@wileyrein.com ATTORNEY TO BE NOTICED

Mary E Borja Wiley Rein LLP 1776 K St NW Washington, DC 20006 2027194252 Fax: 2027197049 Email: mborja@wileyrein.com ATTORNEY TO BE NOTICED

Richard A Simpson Wiley Rein LLP 1776 K St NW Washington, DC 20006 12027197314 Fax: 12027197049 Email: rsimpson@wileyrein.com ATTORNEY TO BE NOTICED

Plaintiff Calvin McNeill

represented by Barry J Fleishman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Deborah A Jeon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sonia Kumar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alexander Haywood Merritt (See above for address) TERMINATED: 02/13/2018

Ashley−Anne Lopez Criss

Case: 1:16-cv-1021 As of: 02/04/2020 02:15 AM EST 3 of 24

(See above for address) ATTORNEY TO BE NOTICED

Charles C Lemley (See above for address) ATTORNEY TO BE NOTICED

Gary Scott Ward , Ward (See above for address) ATTORNEY TO BE NOTICED

George Emil Petel (See above for address) ATTORNEY TO BE NOTICED

Mary E Borja (See above for address) ATTORNEY TO BE NOTICED

Richard A Simpson (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Nathaniel Foster

represented by Barry J Fleishman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Deborah A Jeon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sonia Kumar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alexander Haywood Merritt (See above for address) TERMINATED: 02/13/2018

Ashley−Anne Lopez Criss (See above for address) ATTORNEY TO BE NOTICED

Charles C Lemley (See above for address) ATTORNEY TO BE NOTICED

Gary Scott Ward , Ward (See above for address) ATTORNEY TO BE NOTICED

George Emil Petel (See above for address) ATTORNEY TO BE NOTICED

Mary E Borja (See above for address) ATTORNEY TO BE NOTICED

Richard A Simpson

Case: 1:16-cv-1021 As of: 02/04/2020 02:15 AM EST 4 of 24

(See above for address) ATTORNEY TO BE NOTICED

Plaintiff Kenneth Tucker

represented by Barry J Fleishman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Deborah A Jeon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sonia Kumar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alexander Haywood Merritt (See above for address) TERMINATED: 02/13/2018

Ashley−Anne Lopez Criss (See above for address) ATTORNEY TO BE NOTICED

Charles C Lemley (See above for address) ATTORNEY TO BE NOTICED

Gary Scott Ward , Ward (See above for address) ATTORNEY TO BE NOTICED

George Emil Petel (See above for address) ATTORNEY TO BE NOTICED

Mary E Borja (See above for address) ATTORNEY TO BE NOTICED

Richard A Simpson (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Governer Larry Hogan In His Official Capacity

represented by Julia Doyle Bernhardt Maryland Office of the Attorney General Civil Litigation Division 200 Saint Paul Pl 20th Fl Baltimore, MD 21202 14105767291 Fax: 14105766955 Email: jbernhardt@oag.state.md.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Edward John Kelley Office of the Attorney General of

Case: 1:16-cv-1021 As of: 02/04/2020 02:15 AM EST 5 of 24

Maryland 300 East Joppa Road Baltimore, MD 21286 14103393782 Email: edward.kelley@maryland.gov ATTORNEY TO BE NOTICED

Lisa O Mara Arnquist Maryland Office of the Attorney General Department of Public Safety 300 E. Joppa Road Suite 1000 Towson, MD 21286 410−339−7568 Fax: 14107644022 Email: lisa.arnquist@maryland.gov ATTORNEY TO BE NOTICED

Michael O Connor Doyle State of Maryland Office of the Attorney General Department of Public Safety and Correctional Services 300 East Joppa Road Suite 1000 Towson, MD 21286 14103397567 Fax: 14107645366 Email: michaelo.doyle@maryland.gov ATTORNEY TO BE NOTICED

Steven M Sullivan State of Maryland Office of the Attorney General 200 Saint Paul Place Baltimore, MD 21202 14105766325 Fax: 14105766955 Email: ssullivan@oag.state.md.us TERMINATED: 11/07/2018

Susan Howe Baron State of Maryland Office of the Attorney General Public Safety and Correctional Services 300 E. Joppa Road, Suite 1000 Towson, MD 21286 14103397341 Fax: 14103394243 Email: susan.baron@maryland.gov ATTORNEY TO BE NOTICED

Defendant
David Blumberg In His Official Capacity

represented by Julia Doyle Bernhardt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Edward John Kelley (See above for address) ATTORNEY TO BE NOTICED

Lisa O Mara Arnquist (See above for address)

Case: 1:16-cv-1021 As of: 02/04/2020 02:15 AM EST 6 of 24

ATTORNEY TO BE NOTICED

Michael O Connor Doyle (See above for address) ATTORNEY TO BE NOTICED

Steven M Sullivan (See above for address) TERMINATED: 11/07/2018

Susan Howe Baron (See above for address) ATTORNEY TO BE NOTICED

Defendant Robert L. Green

represented by Julia Doyle Bernhardt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Edward John Kelley (See above for address) ATTORNEY TO BE NOTICED

Lisa O Mara Arnquist (See above for address) ATTORNEY TO BE NOTICED

Michael O Connor Doyle (See above for address) ATTORNEY TO BE NOTICED

Steven M Sullivan (See above for address) TERMINATED: 11/07/2018

Susan Howe Baron (See above for address) ATTORNEY TO BE NOTICED

Defendant
Dayena M. Corcoran In Her Official Capacity

represented by Julia Doyle Bernhardt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Edward John Kelley (See above for address) ATTORNEY TO BE NOTICED

Lisa O Mara Arnquist (See above for address) ATTORNEY TO BE NOTICED

Michael O Connor Doyle (See above for address) ATTORNEY TO BE NOTICED

Steven M Sullivan (See above for address) TERMINATED: 11/07/2018

Susan Howe Baron (See above for address)

Case: 1:16-cv-1021 As of: 02/04/2020 02:15 AM EST 7 of 24

ATTORNEY TO BE NOTICED

Amicus
Roberta Roper Victim's Representative of Stephanie Roper

represented by Russell Paul Butler 3480 Lancer Court Dunkirk, MD 20754 United Sta 13014237500 Email: rpbcjb@gmail.com TERMINATED: 12/26/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer Malia Sullam Office of the Attorney General of Maryland Department of Human Services 311 W. Saratoga Street Suite 1015 Baltimore, MD 21201 410−767−7347 Fax: 410−3330026 Email: jennifer.sullam@maryland.gov TERMINATED: 01/25/2017

Victor D Stone Maryland Crime Victims Resource Center Inc 1001 Prince Georges Blvd Ste 750 Upper Marlboro, MD 20774 3019520063 Fax: 2409290526 Email: vstone@mdcrimevictims.org ATTORNEY TO BE NOTICED

Amicus
Patti Krogmann Victim's Representative for Carl Krogmann

represented by Russell Paul Butler (See above for address) TERMINATED: 12/26/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer Malia Sullam (See above for address) TERMINATED: 01/25/2017

Victor D Stone (See above for address) ATTORNEY TO BE NOTICED

Amicus
Deborah Kempl Co−Victim's Representative of Shirley Rue Mullinix

represented by Russell Paul Butler (See above for address) TERMINATED: 12/26/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer Malia Sullam (See above for address) TERMINATED: 01/25/2017

Victor D Stone (See above for address)

Case: 1:16-cv-1021 As of: 02/04/2020 02:15 AM EST 8 of 24

ATTORNEY TO BE NOTICED

Amicus
Jessica Fisher Co−Victim's Representative of Shirley Rue Mullinix

represented by Russell Paul Butler (See above for address) TERMINATED: 12/26/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer Malia Sullam (See above for address) TERMINATED: 01/25/2017

Victor D Stone (See above for address) ATTORNEY TO BE NOTICED

Amicus
Maryland Crime Victims' Resource Center, Inc. Maryland Crime Victims' Resource Center, Inc.

represented by Russell Paul Butler (See above for address) TERMINATED: 12/26/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer Malia Sullam (See above for address) TERMINATED: 01/25/2017

Victor D Stone (See above for address) ATTORNEY TO BE NOTICED

Date Filed 04/06/2016
04/06/2016 04/07/2016 04/11/2016
05/26/2016 05/26/2016

# Docket Text
1 COMPLAINT against All Defendants ( Filing fee $ 400 receipt number 0416−5947755.), filed by Maryland Restorative Justice Initiative. (Attachments: # 1 Civil Cover Sheet, # 2 Summons to Def. Larry Hogan, # 3 Summons to Def. David Blumberg, # 4 Summons to Def. Stephen Moyer, # 5 Summons to Def. Wayne Webb)(Kumar, Sonia) (Entered: 04/06/2016)
2 MOTION to Appear Pro Hac Vice for James E. Brown ( Filing fee $ 50, receipt number 0416−5949165.) by Maryland Restorative Justice Initiative (Jacobs, Gregory) (Entered: 04/06/2016)
3 Summons Issued 21 days as to David Blumberg, Larry Hogan, Stephen Moyer, Wayne Webb. (ko, Deputy Clerk) (Entered: 04/07/2016)
4 QC NOTICE: 2 Motion to Appear Pro Hac Vice filed by Maryland Restorative Justice Initiative needs to be modified. See attachment for details and corrective actions needed regarding the signature(s) on the motion. (srd, Deputy Clerk) (Entered: 04/11/2016)
5 NOTICE of Appearance by Russell Paul Butler on behalf of Roberta Roper, Patti Krogmann, Deborah Kempl, Jessica Fisher, Maryland Crime Victims' Resource Center, Inc. (Butler, Russell) (Entered: 05/26/2016)
6 (FILED IN ERROR) MOTION to Intervene as of Right and by Permission of the Court by Jessica Fisher, Deborah Kempl, Patti Krogmann, Maryland Crime Victims' Resource Center, Inc., Roberta Roper Responses due by 6/13/2016 (Attachments: # 1 Text of Proposed Order Draft order, # 2 Appendix Intervenor Defendants' Motion to Dismiss, # 3 Appendix Intervenor Defendants' Memo on Motion to Dismiss, # 4 Appendix Apx A Chart of Sentences, # 5 Appendix Intervenor Defendants' Answer)(Butler, Russell) Modified on 5/27/2016 (bmhs, Deputy Clerk). (Entered: 05/26/2016)

Case: 1:16-cv-1021 As of: 02/04/2020 02:15 AM EST 9 of 24

05/26/2016

7 (FILED IN ERROR) Memorandum re 6 MOTION to Intervene as of Right and by Permission of the Court in Support of Intervention filed by Jessica Fisher, Deborah Kempl, Patti Krogmann, Maryland Crime Victims' Resource Center, Inc., Roberta Roper. (Attachments: # 1 Appendix Apx A Testifiers on HB 1323 (2016), # 2 Appendix Apx B AG Letter in Support of HB 1323 (2016))(Butler, Russell) Modified on 5/27/2016 (bmhs, Deputy Clerk). (Entered: 05/26/2016)

05/27/2016

8 QC NOTICE: 6 Motion to Intervene and 7 Memorandum filed by Jessica Fisher, Roberta Roper, Maryland Crime Victims' Resource Center, Inc., Deborah Kempl, Patti Krogmann was filed incorrectly. **A motion, supporting memorandum, exhibits, and proposed order must be filed as one entry. The motion should be filed as the main document with the supporting memorandum, exhibits, and proposed order as a separate attachments to the main document. It has been noted as FILED IN ERROR, and the document link has been disabled. (bmhs, Deputy Clerk) (Entered: 05/27/2016)

05/27/2016

9 Corrected MOTION to Intervene of Right and by Permission of Court by Jessica Fisher, Deborah Kempl, Patti Krogmann, Maryland Crime Victims' Resource Center, Inc., Roberta Roper Responses due by 6/13/2016 (Attachments: # 1 Text of Proposed Order Intervenors' Draft order to intervene, # 2 Appendix Intervenors' Memorandum on Motion to Intervene, # 3 Appendix Intervenors' Apx A of Memo to Intervene Testifiers, # 4 Appendix Intervenors' Apx B of Memo to Intervene AG testimony, # 5 Appendix Intervenors' 12b6 Motion to Dismiss, # 6 Appendix Intervenors' 12b6 Memo to Dismiss, # 7 Appendix Intervenors' Apx A of 12b6 Memo to Dismiss, # 8 Appendix Intervenors' Answer to Complaint)(Butler, Russell) (Entered: 05/27/2016)

05/31/2016

10 NOTICE of Appearance by Victor D Stone on behalf of Jessica Fisher, Deborah Kempl, Patti Krogmann, Maryland Crime Victims' Resource Center, Inc., Roberta Roper (Stone, Victor) (Entered: 05/31/2016)

06/03/2016 11 NOTICE of Appearance by Michael O Connor Doyle on behalf of All Defendants (Doyle, Michael) (Entered: 06/03/2016)

06/03/2016 12 NOTICE of Appearance by Steven M Sullivan on behalf of All Defendants (Sullivan, Steven) (Entered: 06/03/2016)

06/03/2016 13 NOTICE by Wayne Webb of Substitution of Party (Sullivan, Steven) (Entered: 06/03/2016)

06/03/2016

14 Consent MOTION for Extension of Time to File Response/Reply as to 1 Complaint, by Larry Hogan. Responses due by 6/20/2016 (Attachments: # 1 Text of Proposed Order)(Sullivan, Steven) (Entered: 06/03/2016)

06/03/2016 15 ORDER granting 14 Motion for Extension of Time. Signed by Judge Ellen L. Hollander on 6/3/2016. (bmhs, Deputy Clerk) (Entered: 06/06/2016)

06/13/2016

16 RESPONSE to Motion re 9 Corrected MOTION to Intervene of Right and by Permission of Court filed by Larry Hogan. Replies due by 6/30/2016. (Sullivan, Steven) (Entered: 06/13/2016)

06/13/2016

17 RESPONSE in Opposition re 9 Corrected MOTION to Intervene of Right and by Permission of Court filed by Nathaniel Foster, Maryland Restorative Justice Initiative, Calvin McNeill, Kenneth Tucker. Replies due by 6/30/2016. (Kumar, Sonia) (Entered: 06/13/2016)

06/23/2016

18 REPLY to Response to Motion re 9 Corrected MOTION to Intervene of Right and by Permission of Court filed by Jessica Fisher, Deborah Kempl, Patti Krogmann, Maryland Crime Victims' Resource Center, Inc., Roberta Roper. (Attachments: # 1 Appendix A. Circuit Court Victim representative assesrtion in Lawson, # 2 Appendix B. CSA Victim's representative assertion in Tunstall, # 3 Appendix C. CSA Victim's Representative's Appendix in Tunstall, # 4 Appendix D. CSA State Appelle Reply Breif in Tunstall, # 5 Appendix E. CSA State consession in Tunstall, # 6 Appendix F. CSA State concession in Alvira, # 7 Appendix G. CSA State concession in Holly, # 8 Appendix H. Pending Foster federal habeas, # 9 Appendix I. Pending Foster federal supplement, # 10 Appendix J. Pending Foster federal habeas form, # 11 Appendix K. Tunstall federal habeas update, # 12 Appendix L. June 2, 2016 DPSCS Directive)(Butler, Russell) (Entered: 06/23/2016)

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06/27/2016 19 MOTION to Withdraw as Attorney James E. Brown by Maryland Restorative Justice Initiative Responses due by 7/14/2016 (Fleishman, Barry) (Entered: 06/27/2016)

06/29/2016

20 Consent MOTION for Extension of Time to File Response/Reply as to 1 Complaint, by Larry Hogan. Responses due by 7/18/2016 (Attachments: # 1 Text of Proposed Order)(Sullivan, Steven) (Entered: 06/29/2016)

06/29/2016 21 ORDER granting 20 Defendants' Consent Motion for Extension of Time. Signed by Judge Ellen L. Hollander on 6/29/2016. (bmhs, Deputy Clerk) (Entered: 06/30/2016)

07/08/2016

22 MOTION for Leave to File Excess Pages for Memorandum in Support of Motion to Dismiss or, in the Alternative, Motion for Summary Judgment by Larry Hogan Responses due by 7/25/2016 (Attachments: # 1 Text of Proposed Order)(Sullivan, Steven) (Entered: 07/08/2016)

07/08/2016

23 MOTION to Dismiss or in the Alternative, Motion for Summary Judgment, MOTION to Dismiss for Failure to State a Claim by Larry Hogan Responses due by 7/25/2016 (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order, # 3 Exhibit Exhibit 1, # 4 Exhibit Exhibit 2, # 5 Exhibit Exhibit 3)(Sullivan, Steven) (Entered: 07/08/2016)

07/08/2016 24 ORDER granting 22 Motion for Leave to File Excess Pages. Signed by Judge Ellen L. Hollander on 7/8/2016. (bmhs, Deputy Clerk) (Entered: 07/11/2016)

07/11/2016 25 NOTICE of Appearance by Julia Doyle Bernhardt on behalf of All Defendants (Bernhardt, Julia) (Entered: 07/11/2016)

07/14/2016

26 Consent MOTION for Extension of Time to File Response/Reply as to 23 MOTION to Dismiss or in the Alternative, Motion for Summary Judgment MOTION to Dismiss for Failure to State a Claim by Maryland Restorative Justice Initiative Responses due by 8/1/2016 (Attachments: # 1 Exhibit Proposed Order)(Fleishman, Barry) (Entered: 07/14/2016)

07/14/2016 27 ORDER granting 26 Plaintiffs' Consent Motion for Extension of Time. Signed by Judge Ellen L. Hollander on 7/14/2016. (bmhs, Deputy Clerk) (Entered: 07/15/2016)

07/15/2016

28 MOTION for Extension of Time To Request Reconsideration of Order Regarding Page Limitations by Maryland Restorative Justice Initiative Responses due by 8/1/2016 (Attachments: # 1 Exhibit Proposed Order)(Fleishman, Barry) (Entered: 07/15/2016)

07/15/2016 29 ORDER granting 28 Plaintiff's Motion for Extension of Time. Signed by Judge Ellen L. Hollander on 7/15/2016. (bmhs, Deputy Clerk) (Entered: 07/15/2016)

07/15/2016

30 Amended Correspondence Correcting Earlier Submission: 27 Order on Motion for Extension of Time to File Response/Reply, 9 Motion to Intervene,,, Updating proposed order to align dates for Plaintiffs' responses to Motions to Dismiss (Butler, Russell) (Entered: 07/15/2016)

07/15/2016

31 Corrected Correspondence Correcting Earlier Submission: 30 Correcting earlier submission, Updating proposed order to align dates for Plaintiffs' responses to Motions to Dismiss (Butler, Russell) (Entered: 07/15/2016)

08/30/2016 32 MEMORANDUM OPINION. Signed by Judge Ellen L. Hollander on 8/30/2016. (bmhs, Deputy Clerk) (Entered: 08/30/2016)

08/30/2016

33 ORDER denying 9 Motion to Intervene; and granting Movants amicus curiae status. Signed by Judge Ellen L. Hollander on 8/30/2016. (bmhs, Deputy Clerk) (Entered: 08/30/2016)

08/31/2016

34 RESPONSE in Support re 26 Consent MOTION for Extension of Time to File Response/Reply as to 23 MOTION to Dismiss or in the Alternative, Motion for Summary Judgment MOTION to Dismiss for Failure to State a Claim , 28 MOTION for Extension of Time To Request Reconsideration of Order Regarding Page Limitations, 23 MOTION to Dismiss or in the Alternative, Motion for Summary Judgment MOTION to Dismiss for Failure to State a Claim AMICI MEMORANDUM IN SUPPORT OF DEFENDANTS MOTION TO DISMISS, OR IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT filed by Jessica Fisher, Deborah Kempl, Patti Krogmann, Maryland Crime Victims' Resource Center, Inc.,

Case: 1:16-cv-1021 As of: 02/04/2020 02:15 AM EST 11 of 24

09/09/2016
09/09/2016 09/21/2016
09/22/2016 09/26/2016 09/26/2016 10/11/2016 10/12/2016 10/18/2016 10/24/2016 11/04/2016 12/02/2016 12/07/2016 12/07/2016

Roberta Roper. Replies due by 9/19/2016. (Attachments: # 1 Exhibit Amici Exhibit # 1, # 2 Exhibit Amici Exhibit # 2, # 3 Exhibit Amici Exhibit # 3)(Butler, Russell) (Entered: 08/31/2016)
35 RESPONSE in Opposition re 23 MOTION to Dismiss or in the Alternative, Motion for Summary Judgment MOTION to Dismiss for Failure to State a Claim filed by Nathaniel Foster, Maryland Restorative Justice Initiative, Calvin McNeill, Kenneth Tucker. Replies due by 9/26/2016. (Attachments: # 1 Affidavit of Barry J. Fleishman)(Fleishman, Barry) (Entered: 09/09/2016)
36 MOTION to Strike 34 Response in Support of Motion,,, Filings by Amici Curiae by Nathaniel Foster, Maryland Restorative Justice Initiative, Calvin McNeill, Kenneth Tucker Responses due by 9/26/2016 (Attachments: # 1 Exhibit Memorandum in Support of Motion to Strike)(Jeon, Deborah) (Entered: 09/09/2016)
37 Consent MOTION for Extension of Time to File Response/Reply as to 35 Response in Opposition to Motion, to Dismiss, or in the Alternative, Motion for Summary Judgment by David Blumberg, Dayena M. Corcoran, Larry Hogan, Stephen Moyer Responses due by 10/11/2016 (Attachments: # 1 Text of Proposed Order)(Doyle, Michael) (Entered: 09/21/2016)
38 ORDER granting 37 Consent Motion for Extension of Time. Signed by Judge Ellen L. Hollander on 9/21/2016. (bmhs, Deputy Clerk) (Entered: 09/22/2016)
39 NOTICE of Appearance by Jennifer Malia Sullam on behalf of Deborah Kempl, Patti Krogmann, Maryland Crime Victims' Resource Center, Inc., Roberta Roper, and Jessica Fisher. (Sullam, Jennifer) Modified on 9/27/2016 (bmhs, Deputy Clerk). (Entered: 09/26/2016)
40 RESPONSE in Opposition re 36 MOTION to Strike 34 Response in Support of Motion,,, Filings by Amici Curiae filed by Jessica Fisher, Deborah Kempl, Patti Krogmann, Maryland Crime Victims' Resource Center, Inc., Roberta Roper. Replies due by 10/14/2016. (Sullam, Jennifer) (Entered: 09/26/2016)
41 REPLY to Response to Motion re 23 MOTION to Dismiss or in the Alternative, Motion for Summary Judgment MOTION to Dismiss for Failure to State a Claim filed by David Blumberg. (Attachments: # 1 Exhibit Declaration of David R. Blumberg)(Sullivan, Steven) (Entered: 10/11/2016)
42 REPLY to Response to Motion re 36 MOTION to Strike 34 Response in Support of Motion,,, Filings by Amici Curiae filed by Nathaniel Foster, Maryland Restorative Justice Initiative, Calvin McNeill, Kenneth Tucker. (Kumar, Sonia) (Entered: 10/12/2016)
43 MOTION for Leave to File Surreply by Nathaniel Foster, Maryland Restorative Justice Initiative, Calvin McNeill, Kenneth Tucker Responses due by 11/4/2016 (Attachments: # 1 Text of Proposed Order)(Jeon, Deborah) (Entered: 10/18/2016)
44 RESPONSE to Motion re 43 MOTION for Leave to File Surreply filed by David Blumberg, Dayena M. Corcoran. Replies due by 11/10/2016. (Sullivan, Steven) (Entered: 10/24/2016)
45 REPLY to Response to Motion re 43 MOTION for Leave to File Surreply filed by Nathaniel Foster, Maryland Restorative Justice Initiative, Calvin McNeill, Kenneth Tucker. (Attachments: # 1 Proposed Surreply)(Kumar, Sonia) (Entered: 11/04/2016)
46 PAPERLESS ORDER. A motions hearing has been scheduled for December 21, 2016, at 2:15 p.m. in Courtroom 5B. Signed by Judge Ellen L. Hollander on 12/2/2016. (kw, Chambers) (Entered: 12/02/2016)
47 PAPERLESS ORDER. The motions hearing scheduled for December 21, 2016, has been rescheduled to January 4, 2017, at 10:00 a.m. in Courtroom 5B. Signed by Judge Ellen L. Hollander on 12/7/2016. (kw, Chambers) (Entered: 12/07/2016)
48 MEMORANDUM to Counsel. Signed by Judge Ellen L. Hollander on 12/7/2016. (bmhs, Deputy Clerk) (Entered: 12/07/2016)

Case: 1:16-cv-1021 As of: 02/04/2020 02:15 AM EST 12 of 24

12/16/2016

49 Memorandum re 23 MOTION to Dismiss or in the Alternative, Motion for Summary Judgment MOTION to Dismiss for Failure to State a Claim Impact of LeBlanc Decision filed by Maryland Restorative Justice Initiative.(Fleishman, Barry) (Entered: 12/16/2016)

12/16/2016

50 Supplemental to 23 MOTION to Dismiss or in the Alternative, Motion for Summary Judgment MOTION to Dismiss for Failure to State a Claim filed by David Blumberg, Dayena M. Corcoran Briefing Addressing LeBlanc v. Mathena (Sullivan, Steven) (Entered: 12/16/2016)

12/20/2016

51 Consent MOTION for Writ of Habeas Corpus ad testificandum by Nathaniel Foster, Maryland Restorative Justice Initiative, Calvin McNeill, Kenneth Tucker (Attachments: # 1 Exhibit Memorandum of Law, # 2 Text of Proposed Order, # 3 Exhibit Writ of Habeas Corpus − Nathaniel Foster, # 4 Exhibit Writ of Habeas Corpus − Calvin McNeill, # 5 Exhibit Writ of Habeas Corpus − Kenneth Tucker)(Jeon, Deborah) (Entered: 12/20/2016)

12/20/2016 52 ORDER granting 51 Plaintiffs' Consent Motion for Writ of Habeas Corpus. Signed by Judge Ellen L. Hollander on 12/20/2016. (bmhs, Deputy Clerk) (Entered: 12/20/2016)

12/20/2016 53 WRIT of Habeas Corpus issued as to Calvin McNeill. (bmhs, Deputy Clerk) (Entered: 12/20/2016)

12/20/2016 54 WRIT of Habeas Corpus issued as to Nathaniel Foster. (bmhs, Deputy Clerk) (Entered: 12/20/2016)

12/20/2016 55 WRIT of Habeas Corpus issued as to Kenneth Tucker. (bmhs, Deputy Clerk) (Entered: 12/20/2016)

12/21/2016 56 Substantive legal issues − addressing (Sullam, Jennifer) (Entered: 12/21/2016)

12/28/2016

57 REPLY to Response to Motion re 23 MOTION to Dismiss or in the Alternative, Motion for Summary Judgment MOTION to Dismiss for Failure to State a Claim (concerning Impact of LeBlanc) filed by Nathaniel Foster, Maryland Restorative Justice Initiative, Calvin McNeill, Kenneth Tucker.(Jeon, Deborah) (Entered: 12/28/2016)

12/28/2016

58 Supplemental to 23 MOTION to Dismiss or in the Alternative, Motion for Summary Judgment MOTION to Dismiss for Failure to State a Claim filed by David Blumberg, Dayena M. Corcoran, Larry Hogan, Stephen Moyer Reply Memorandum Addressing LeBlanc v. Mathena (Doyle, Michael) (Entered: 12/28/2016)

01/03/2017

59 ORDER granting 43 Motion for Leave to File a Surreply to Defendants' Reply in Support of defendants' Motion to Dismiss, or in the Alternative, for Summary Judgment. Signed by Judge Ellen L. Hollander on 1/3/2017. (bmhs, Deputy Clerk) (Entered: 01/03/2017)

01/03/2017

60 Surreply to 23 Defendants' MOTION to Dismiss or in the Alternative, Motion for Summary Judgment filed by Nathaniel Foster, Maryland Restorative Justice Initiative, Calvin McNeill, Kenneth Tucker.(bmhs, Deputy Clerk) (Entered: 01/03/2017)

01/04/2017

61 Motion Hearing held on 1/4/2017 re 23 MOTION to Dismiss or in the Alternative, Motion for Summary Judgment MOTION to Dismiss for Failure to State a Claim filed by Larry Hogan before Judge Ellen L. Hollander.(Court Reporter: Mary Zajac) (J Herndon, Deputy Clerk) (Entered: 01/04/2017)

01/05/2017 62 Correspondence from Robert Haughie (Attachments: # 1 Exhibit)(ko, Deputy Clerk) (Entered: 01/10/2017)

01/25/2017 63 Correspondence re: Withdrawal of Appearance (Sullam, Jennifer) (Entered: 01/25/2017)

01/25/2017 64 MARGINAL ORDER approving 63 Withdrawal of Appearance. Signed by Judge Ellen L. Hollander on 1/25/2017. (bmhs, Deputy Clerk) (Entered: 01/26/2017)

02/03/2017 65 MEMORANDUM OPINION. Signed by Judge Ellen L. Hollander on 2/3/2017. (bmhs, Deputy Clerk) (Entered: 02/03/2017)

Case: 1:16-cv-1021 As of: 02/04/2020 02:15 AM EST 13 of 24

02/03/2017

66 ORDER denying 36 Plaintiffs' Motion to Strike; and granting in part and denying in part 23 Defendants' Motion to Dismiss, or in the Alternative, Motion for Summary Judgment, construed as a Motion to Dismiss. Signed by Judge Ellen L. Hollander on 2/3/2017. (bmhs, Deputy Clerk) (Entered: 02/03/2017)

02/06/2017 67 ORDER directing Defendants to file an answer to the Complaint. Signed by Judge Ellen L. Hollander on 2/6/2017. (bmhs, Deputy Clerk) (Entered: 02/06/2017)

02/28/2017 68 NOTICE of Appearance by Susan Howe Baron on behalf of All Defendants (Baron, Susan) (Entered: 02/28/2017)

02/28/2017 69 ANSWER to 1 Complaint, by David Blumberg, Dayena M. Corcoran, Larry Hogan, Stephen Moyer.(Doyle, Michael) (Entered: 02/28/2017)

03/01/2017

70 ORDER directing Counsel to submit a proposed scheduling to govern the progress of the litigation. Signed by Judge Ellen L. Hollander on 3/1/2017. (bmhs, Deputy Clerk) (Entered: 03/01/2017)

03/20/2017 71 NOTICE of Appearance by Alexander Haywood Merritt on behalf of Maryland Restorative Justice Initiative (Merritt, Alexander) (Entered: 03/20/2017)

03/20/2017 72 NOTICE of Appearance by Richard A Simpson on behalf of Maryland Restorative Justice Initiative (Simpson, Richard) (Entered: 03/20/2017)

03/20/2017 73 NOTICE of Appearance by Mary E Borja on behalf of Maryland Restorative Justice Initiative (Borja, Mary) (Entered: 03/20/2017)

03/22/2017

74 STATUS REPORT Parties' Proposed Schedule to Govern Progress of the Case by Nathaniel Foster, Maryland Restorative Justice Initiative, Calvin McNeill, Kenneth Tucker(Fleishman, Barry) (Entered: 03/22/2017)

03/29/2017

Telephone Status Conference held on 3/29/2017 before Judge Ellen L. Hollander. (bmhs, Deputy Clerk) (Entered: 03/30/2017)

03/30/2017

75 ORDER REFERRING CASE to Magistrate Judge A. David Copperthite for Settlement. Signed by Judge Ellen L. Hollander on 3/30/2017 (cags, Deputy Clerk) (Entered: 03/30/2017)

03/30/2017

76 SCHEDULING ORDER: Status Report due by 2/2/2018.. Signed by Judge Ellen L. Hollander on 3/30/2017. (Attachments: # 1 Standing Memorandum to Counsel Concerning Discovery)(bmhs, Deputy Clerk) (Entered: 03/30/2017)

04/07/2017 77 ORDER Scheduling Settlement Conference. Signed by Magistrate Judge A. David Copperthite on 4/7/2017. (bmhs, Deputy Clerk) (Entered: 04/07/2017)

05/15/2017 78 Correspondence from Judge Hollander to Bernard Miller re: Letter dated 5/8/17.(c/m 5/16/17 bmhs, Deputy Clerk) (Entered: 05/16/2017)

06/14/2017 79 Supplemental to (Attachments: # 1 Supplement Suppl Controlling Authority)(Stone, Victor) (Entered: 06/14/2017)

06/19/2017 80 NOTICE of Appearance by Alexander Haywood Merritt on behalf of Nathaniel Foster, Calvin McNeill, Kenneth Tucker (Merritt, Alexander) (Entered: 06/19/2017)

06/19/2017 81 NOTICE of Appearance by Mary E Borja on behalf of Nathaniel Foster, Calvin McNeill, Kenneth Tucker (Borja, Mary) (Entered: 06/19/2017)

06/19/2017 82 NOTICE of Appearance by Richard A Simpson on behalf of Nathaniel Foster, Calvin McNeill, Kenneth Tucker (Simpson, Richard) (Entered: 06/19/2017)

06/21/2017 83 NOTICE of Appearance by Gary Scott Ward, Ward on behalf of All Plaintiffs (Ward, Gary) (Entered: 06/21/2017)

07/31/2017

84 MOTION to Compel by Maryland Restorative Justice Initiative (Attachments: # 1 Exhibit MRJIs Motion to Compel, # 2 Exhibit Proposed Order Regarding MRJIs Motion to Compel, # 3 Exhibit Memorandum in Support of MRJIs Motion to Compel ("MRJI Memo"), # 4 Exhibit MRJI Memo, Exhibit 1, Defendants Objections to MRJIs April 18, 2017 Discovery Requests, # 5 Exhibit MRJI Memo, Exhibit 2, Plaintiffs Letter re Discovery Dispute, # 6 Exhibit MRJI Memo, Exhibit 3, Defendants Letter re Discovery Dispute, # 7 Exhibit Defendants Opposition to MRJIs Motion to Compel

Case: 1:16-cv-1021 As of: 02/04/2020 02:15 AM EST 14 of 24

08/01/2017 09/15/2017
09/26/2017 09/27/2017 09/27/2017 10/05/2017
10/06/2017 10/06/2017 10/06/2017 10/06/2017
10/06/2017 10/27/2017
11/01/2017 11/02/2017 11/06/2017

(Defs. Opp.), # 8 Exhibit Defs. Opp., Exhibit 1, Plaintiffs First Set of Interrogatories and Requests for Documents, # 9 Exhibit Defs. Opp., Exhibit 2, Defendants Objections to MRJIs April 18, 2017 Discovery Requests, # 10 Exhibit Defs. Opp., Exhibit 3, Defendants Answers to MRJIs Interrogatories, # 11 Exhibit Defs. Opp., Exhibit 4, Declaration of David R. Blumberg, # 12 Exhibit Defs. Opp., Exhibit 4, Declaration of David R. Blumberg, Attachment A, # 13 Exhibit MRJIs Reply in Support of Its Motion to Compel (MRJI Reply), # 14 Exhibit MRJI Reply, Exhibit 1, Defendants Responses to MRJIs First Requests for Production of Documents)(Simpson, Richard) (Entered: 07/31/2017)
85 ORDER REFERRING CASE to Magistrate Judge J. Mark Coulson for all discovery and related scheduling. Signed by Judge Ellen L. Hollander on 8/1/2017 (cags, Deputy Clerk) (Entered: 08/01/2017)
86 PAPERLESS ORDER: The Court will hold a hearing on September 26, 2017 at 9:30am to hear argument by both parties regarding the discovery issues in Plaintiffs' Motion to Compel (ECF No. 84). Signed by Magistrate Judge J. Mark Coulson on 9/15/2017. (daws, Chambers) (Entered: 09/15/2017)
87 Discovery Hearing held on 9/26/2017 before Magistrate Judge J. Mark Coulson.(FTR: Vockroth) (kvs, Deputy Clerk) (Additional attachment(s) added on 9/26/2017: # 1 Civil Minutes) (kvs, Deputy Clerk). (Entered: 09/26/2017)
88 MEMORANDUM OPINION. Signed by Magistrate Judge J. Mark Coulson on 9/27/2017. (bmhs, Deputy Clerk) (Entered: 09/27/2017)
89 ORDER granting in part and denying in part 84 Plaintiffs' Motion to Compel. Signed by Magistrate Judge J. Mark Coulson on 9/27/2017. (bmhs, Deputy Clerk) (Entered: 09/27/2017)
90 Consent MOTION for Writ of Habeas Corpus ad testificandum by Nathaniel Foster, Maryland Restorative Justice Initiative, Calvin McNeill, Kenneth Tucker (Attachments: # 1 Memorandum in Support of Motion, # 2 Text of Proposed Order, # 3 Exhibit Writ of Habeas Corpus − Nathaniel Foster, # 4 Exhibit Writ of Habeas Corpus − Calvin McNeill, # 5 Exhibit Writ of Habeas Corpus − Kenneth Tucker)(Simpson, Richard) (Entered: 10/05/2017)
92 WRIT of Habeas Corpus Ad Testificandum issued as to Nathaniel Foster. (hmls, Deputy Clerk) Modified on 10/6/2017 (hmls, Deputy Clerk). (Entered: 10/06/2017)
93 WRIT of Habeas Corpus Ad Testificandum issued as to Calvin McNeill. (hmls, Deputy Clerk) (Entered: 10/06/2017)
94 WRIT of Habeas Corpus Ad Testificandum issued as to Kenneth Tucker. (hmls, Deputy Clerk) (Entered: 10/06/2017)
95 Consent MOTION for Extension of Time for Discovery and Modify Scheduling Order by Nathaniel Foster, Maryland Restorative Justice Initiative, Calvin McNeill, Kenneth Tucker (Attachments: # 1 Text of Proposed Order Amended Scheduling)(Simpson, Richard) (Entered: 10/06/2017)
96 AMENDED SCHEDULING ORDER: Status Report due by 3/5/2018. Signed by Judge Ellen L. Hollander on 10/6/2017. (kw2s, Deputy Clerk) (Entered: 10/10/2017)
97 PAPERLESS ORDER notifying counsel that the Settlement Conference scheduled for November 2, 2017 at 10:00 a.m. before Judge Copperthite will be held in Courtroom 3C.. Signed by Magistrate Judge A. David Copperthite on 10/27/2017. (Chambers) (Entered: 10/27/2017)
Telephone Conference held on 11/1/2017 before Magistrate Judge A. David Copperthite. (bmhs, Deputy Clerk) (Entered: 11/01/2017)
Settlement Conference held on 11/2/2017 before Magistrate Judge A. David Copperthite. (bmhs, Deputy Clerk) (Entered: 11/03/2017)
98 PAPERLESS ORDER CONFIRMING that a follow up Settlement Conference has been scheduled for Tuesday, January 2, 2018 at 10:00 a.m. Counsel should submit by December 29, 2017, brief supplemental ex parte letters summarizing settlement negotiations to date. Signed by Magistrate Judge A. David Copperthite on 11/6/2017.

Case: 1:16-cv-1021 As of: 02/04/2020 02:15 AM EST 15 of 24

11/10/2017
12/18/2017 12/26/2017 12/27/2017 12/28/2017 12/28/2017 01/04/2018
01/05/2018
01/16/2018 01/17/2018 01/18/2018 01/19/2018
01/19/2018 01/22/2018 01/22/2018

(Chambers) (Entered: 11/06/2017)
99 Consent MOTION for Writ of Habeas Corpus ad testificandum by Nathaniel Foster, Maryland Restorative Justice Initiative, Calvin McNeill, Kenneth Tucker (Attachments: # 1 Memorandum In Support of Motion, # 2 Text of Proposed Order, # 3 Exhibit Writ of Habeas Corpus − Nathaniel Foster, # 4 Exhibit Writ of Habeas Corpus − Calvin McNeill, # 5 Exhibit Writ of Habeas Corpus − Kenneth Tucker)(Simpson, Richard) (Entered: 11/10/2017)
107 PAPERLESS ORDER notifying counsel that the Settlement Conference scheduled for Tuesday, January 2, 2018 at 10:00 a.m. will be held in Courtroom 3C. Signed by Magistrate Judge A. David Copperthite on 12/18/2017. (Chambers) (Entered: 12/18/2017)
108 Correspondence re: Request to Postpone January 2 Settlement Conference (Fleishman, Barry) (Entered: 12/26/2017)
109 PAPERLESS ORDER. As requested by counsel, the settlement conference scheduled for January 2, 2018 is Postponed. Signed by Magistrate Judge A. David Copperthite on 12/27/2017. (Chambers) (Entered: 12/27/2017)
110 Consent MOTION for Other Relief Cancellation of Writs of Habeas Corpus by Maryland Restorative Justice Initiative (Attachments: # 1 Text of Proposed Order)(Borja, Mary) (Entered: 12/28/2017)
111 ORDER granting 110 Motion for Cancellation of Writs of Habeas Corpus. Signed by Judge Ellen L. Hollander on 12/28/2017 (cags, Deputy Clerk) (c/s USM 12/28/17) (Entered: 12/28/2017)
112 PAPERLESS ORDER Confirming that a follow−up Settlement Conference has been scheduled for Thursday, January 18, 2018 at 10:00 a.m. Courtroom to be determined. Counsel should submit by January 16, 2018 brief supplemental ex parte letters summarizing settlement negotiations to date. Signed by Magistrate Judge A. David Copperthite on 1/4/2018. (Chambers) (Entered: 01/04/2018)
113 Consent MOTION for Writ of Habeas Corpus ad testificandum by Nathaniel Foster, Maryland Restorative Justice Initiative, Calvin McNeill, Kenneth Tucker (Attachments: # 1 Memorandum in Support of Motion, # 2 Text of Proposed Order, # 3 Exhibit Writ of Habeas Corpus − Nathaniel Foster, # 4 Exhibit Writ of Habeas Corpus − Calvin McNeill, # 5 Exhibit Writ of Habeas Corpu − Kenneth Tucker)(Simpson, Richard) (Entered: 01/05/2018)
115 PAPERLESS ORDER notifying counsel that the Settlement Conference scheduled for Thursday, January 18, 2018 at 10:00 a.m. will be held in Courtroom 1A. Signed by Magistrate Judge A. David Copperthite on 1/16/2018. (Chambers) (Entered: 01/16/2018)
Telephone Conference held on 1/17/2018 before Magistrate Judge A. David Copperthite. (bmhs, Deputy Clerk) (Entered: 01/18/2018)
Settlement Conference held on 1/18/2018 before Magistrate Judge A. David Copperthite. (bmhs, Deputy Clerk) (Entered: 01/18/2018)
116 PAPERLESS ORDER. A second settlement conference was held today and after consultation with Judge Hollander, the parties' request to stay all proceedings and deadlines until further order of the Court is GRANTED. A new date for the continued settlement conference will be set by my chambers. Signed by Magistrate Judge A. David Copperthite on 1/19/2018. (Chambers) (Entered: 01/19/2018)
Telephone Conference held on 1/19/2018 before Magistrate Judge A. David Copperthite. (hep, Deputy Clerk) (Entered: 01/22/2018)
Telephone Conference held on 1/22/2018 before Magistrate Judge A. David Copperthite. (hep, Deputy Clerk) (Entered: 01/22/2018)
117 PAPERLESS ORDER: A conference call was held today and all parties were represented by counsel. The Court directs that communications between opposing parties be directed to counsel and not soley to the individual represented agencies or from any of Defendants to the individual party Plaintiffs. Signed by Magistrate Judge

Case: 1:16-cv-1021 As of: 02/04/2020 02:15 AM EST 16 of 24

02/12/2018
02/13/2018
02/13/2018 02/13/2018 02/13/2018 02/13/2018 02/13/2018 04/27/2018 05/08/2018
05/08/2018 05/08/2018 05/08/2018 05/10/2018 05/15/2018 05/22/2018
06/06/2018 06/28/2018

A. David Copperthite on 1/22/2018. (Chambers) (Entered: 01/22/2018)
118 PAPERLESS ORDER Confirming that a follow−up Settlement Conference has been scheduled for Friday, May 11, 2018 at 10:00 a.m. Courtroom to be determined. Counsel should submit by May 4, 2018 brief supplemental ex parte letters summarizing settlement negotiations to date. Signed by Magistrate Judge A. David Copperthite on 2/12/2018. (Chambers) (Entered: 02/12/2018)
119 Consent MOTION for Writ of Habeas Corpus ad testificandum by Nathaniel Foster, Maryland Restorative Justice Initiative, Calvin McNeill, Kenneth Tucker (Attachments: # 1 Memorandum of Law in Support, # 2 Text of Proposed Order, # 3 Proposed Writ of Habeas Corpus−Foster, # 4 Proposed Writ of Habeas Corpus−McNeill, # 5 Proposed Writ of Habeas Corpus−Tucker)(Borja, Mary) (Entered: 02/13/2018)
120 NOTICE by Maryland Restorative Justice Initiative of Withdrawal of Appearance (Borja, Mary) (Entered: 02/13/2018)
121 MARGINAL ORDER approving 120 NOTICE by Maryland Restorative Justice Initiative of Withdrawal of Appearance of Alexander Merritt. Signed by Judge Ellen L. Hollander on 2/13/2018. (bmhs, Deputy Clerk) (Entered: 02/14/2018)
123 WRIT of Habeas Corpus Ad Testificandum issued as to Nathaniel Foster. (c/d to USMS 2/14/18 bmhs, Deputy Clerk) (Entered: 02/14/2018)
124 WRIT of Habeas Corpus Ad Testificandum issued as to Calvin McNeill. (c/d to USMS 2/14/18 bmhs, Deputy Clerk) (Entered: 02/14/2018)
125 WRIT of Habeas Corpus Ad Testificandum issued as to Kenneth Tucker. (c/d to USMS 2/14/18 bmhs, Deputy Clerk) (Entered: 02/14/2018)
126 MOTION for Other Relief Lift Stay and Modify Scheduling Order by Maryland Restorative Justice Initiative (Attachments: # 1 Text of Proposed Order)(Borja, Mary) (Entered: 04/27/2018)
127 PAPERLESS ORDER: The settlement conference scheduled for Friday, May 11, 2018 is canceled. Settlement will remain open and a new settlement date will be set in the future in consultation with the Court. Signed by Magistrate Judge A. David Copperthite on 5/8/2018. (Chambers) (Entered: 05/08/2018)
Telephone Conference held on 5/8/2018 before Magistrate Judge A. David Copperthite. (bmhs, Deputy Clerk) (Entered: 05/08/2018)
128 Consent MOTION for Other Relief Cancellation of Writs of Habeas Corpus by Maryland Restorative Justice Initiative(Borja, Mary) (Entered: 05/08/2018)
129 MARGINAL ORDER approving 128 Plaintiffs' Consent Motion to Cancel Writs of Habeas Corpus. Signed by Judge Ellen L. Hollander on 5/8/2018. (c/d to USMS 5/9/18 bmhs, Deputy Clerk) (Entered: 05/09/2018)
130 RESPONSE to Motion re 126 MOTION for Other Relief Lift Stay and Modify Scheduling Order filed by David Blumberg, Dayena M. Corcoran, Larry Hogan, Stephen Moyer.(Baron, Susan) (Entered: 05/10/2018)
131 ORDER lifting 126 the stay of all proceedings; and directing the Defendants to notify the Court if they object to Plaintiffs' proposed Modified Scheduling Order. Signed by Judge Ellen L. Hollander on 5/15/2018. (bmhs, Deputy Clerk) (Entered: 05/15/2018)
132 RESPONSE to Motion re 126 MOTION for Other Relief Lift Stay and Modify Scheduling Order filed by David Blumberg, Dayena M. Corcoran, Larry Hogan, Stephen Moyer. (Attachments: # 1 Text of Proposed Order)(Baron, Susan) (Entered: 05/22/2018)
133 SECOND AMENDED SCHEDULING ORDER: Status Report due by 12/10/2018. Signed by Judge Ellen L. Hollander on 6/6/2018. (bmhs, Deputy Clerk) (Entered: 06/06/2018)
134 MOTION for Judgment on the Pleadings and an Injunction Regarding the Unconstitutional Role of the Governor by Maryland Restorative Justice Initiative

Case: 1:16-cv-1021 As of: 02/04/2020 02:15 AM EST 17 of 24

07/10/2018
07/10/2018 07/19/2018
07/19/2018
07/19/2018 07/25/2018
07/25/2018 08/02/2018 08/15/2018
08/15/2018 08/26/2018 08/27/2018 08/28/2018 08/28/2018

(Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Borja, Mary) (Entered: 06/28/2018)
135 Consent MOTION for Extension of Time to File Response/Reply to Plaintiffs' "Motion for Partial Judgment on the Pleadings and an Injunction Regarding the Unconstitutional Role of the Governor" by David Blumberg, Dayena M. Corcoran, Larry Hogan, Stephen Moyer. (Attachments: # 1 Text of Proposed Order)(Baron, Susan) (Entered: 07/10/2018)
136 ORDER granting 135 Defendants' Consent Motion for Extension of Time. Signed by Judge Ellen L. Hollander on 7/10/2018. (bmhs, Deputy Clerk) (Entered: 07/11/2018)
137 Consent MOTION for Extension of Time to File Response/Reply as to 134 MOTION for Judgment on the Pleadings and an Injunction Regarding the Unconstitutional Role of the Governor, 136 Order on Motion for Extension of Time to File Response/Reply by David Blumberg, Dayena M. Corcoran, Larry Hogan, Stephen Moyer. (Attachments: # 1 Text of Proposed Order)(Baron, Susan) (Entered: 07/19/2018)
138 RESPONSE in Opposition re 134 MOTION for Judgment on the Pleadings and an Injunction Regarding the Unconstitutional Role of the Governor, 137 Consent MOTION for Extension of Time to File Response/Reply as to 134 MOTION for Judgment on the Pleadings and an Injunction Regarding the Unconstitutional Role of the Governor, 136 Order on Motion for Extension of Time to File Response, 135 Consent MOTION for Extension of Time to File Response/Reply to Plaintiffs' "Motion for Partial Judgment on the Pleadings and an Injunction Regarding the Unconstitutional Role of the Governor" AMICI POSITION IN OPPOSITION TO PLAINTIFFS MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS AND AN INJUNCTION filed by Jessica Fisher, Deborah Kempl, Patti Krogmann, Maryland Crime Victims' Resource Center, Inc., Roberta Roper.(Butler, Russell) (Entered: 07/19/2018)
139 ORDER granting 137 Defendants' Second Motion for Extension of Time. Signed by Judge Ellen L. Hollander on 7/19/2018. (bmhs, Deputy Clerk) (Entered: 07/20/2018)
140 Consent MOTION for Extension of Time to File Response/Reply as to 134 MOTION for Judgment on the Pleadings and an Injunction Regarding the Unconstitutional Role of the Governor by David Blumberg, Dayena M. Corcoran, Larry Hogan, Stephen Moyer. (Attachments: # 1 Text of Proposed Order)(Baron, Susan) (Entered: 07/25/2018)
141 ORDER granting 140 Defendants' Third and Final Consent Motion for Extension of Time. Signed by Judge Ellen L. Hollander on 7/25/2018. (bmhs, Deputy Clerk) (Entered: 07/26/2018)
142 Cross MOTION for Judgment on the Pleadings (Partial Judgment) and Response in Opposition to Plaintiffs' Motion for Partial Judgment on the Pleadings and Injunction, by David Blumberg, Dayena M. Corcoran, Larry Hogan, Stephen Moyer (Attachments: # 1 Memorandum in Support)(Baron, Susan) (Entered: 08/02/2018)
143 Consent MOTION for Extension of Time to File Response/Reply as to 142 Cross MOTION for Judgment on the Pleadings (Partial Judgment) and Response in Opposition to Plaintiffs' Motion for Partial Judgment on the Pleadings and Injunction, by Nathaniel Foster, Maryland Restorative Justice Initiative, Calvin McNeill, Kenneth Tucker. (Attachments: # 1 Text of Proposed Order)(Simpson, Richard) (Entered: 08/15/2018)
144 ORDER granting 143 Plaintiffs' Consent Motion for Extension of Time. Signed by Judge Ellen L. Hollander on 8/15/2018. (bmhs, Deputy Clerk) (Entered: 08/16/2018)
145 NOTICE of Appearance by George Emil Petel on behalf of All Plaintiffs (Petel, George) (Entered: 08/26/2018)
146 Emergency Request for Conference (Borja, Mary) (Entered: 08/27/2018)
147 Correspondence re: Discovery Issues (Baron, Susan) (Entered: 08/28/2018)
Telephone Status Conference held on 8/28/2018 before Magistrate Judge J. Mark Coulson. (bmhs, Deputy Clerk) (Entered: 08/28/2018)

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08/28/2018

148 Consent MOTION for Extension of Time to File Response/Reply as to 142 Cross MOTION for Judgment on the Pleadings (Partial Judgment) and Response in Opposition to Plaintiffs' Motion for Partial Judgment on the Pleadings and Injunction, by Nathaniel Foster, Maryland Restorative Justice Initiative, Calvin McNeill, Kenneth Tucker. (Attachments: # 1 Text of Proposed Order)(Simpson, Richard) (Entered: 08/28/2018)

08/29/2018 149 NOTICE of Appearance by Lisa O Mara Arnquist on behalf of All Defendants (Arnquist, Lisa) (Entered: 08/29/2018)

08/29/2018 150 ORDER granting 148 Plaintiffs' Second Consent Motion for Extension of Time. Signed by Judge Ellen L. Hollander on 8/29/2018. (bmhs, Deputy Clerk) (Entered: 08/29/2018)

08/29/2018 151 Third Amended Scheduling Order and Discovery Briefing Schedule: Status Report due by 11/9/2018. Signed by Magistrate Judge J. Mark Coulson. (bmhs, Deputy Clerk) (Entered: 08/29/2018)

09/05/2018

152 Consent MOTION for Extension of Time to File Response/Reply as to 142 Cross MOTION for Judgment on the Pleadings (Partial Judgment) and Response in Opposition to Plaintiffs' Motion for Partial Judgment on the Pleadings and Injunction, by Nathaniel Foster, Maryland Restorative Justice Initiative, Calvin McNeill, Kenneth Tucker. (Attachments: # 1 Text of Proposed Order)(Simpson, Richard) (Entered: 09/05/2018)

09/06/2018 153 ORDER granting Plaintiffs' 152 Third Consent Motion for Extension of Time to File Reply re 134 MOTION for Partial Judgment on the Pleadings. Signed by Judge Ellen L. Hollander on 9/6/2018. (dass, Deputy Clerk) (Entered: 09/06/2018)

09/07/2018

154 MOTION for Protective Order (confidentiality protective order) by David Blumberg, Dayena M. Corcoran, Larry Hogan, Stephen Moyer (Attachments: # 1 Memorandum in Support, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Text of Proposed Order)(Baron, Susan) (Entered: 09/07/2018)

09/07/2018 155 NOTICE by Dayena M. Corcoran of Substitution of Party (Doyle, Michael) (Entered: 09/07/2018)

09/11/2018

156 (FILED IN ERROR) RESPONSE re 142 Cross MOTION for Judgment on the Pleadings (Partial Judgment) and Response in Opposition to Plaintiffs' Motion for Partial Judgment on the Pleadings and Injunction, Amici Position in Support of Defendants Cross−Motion for Partial Judgment on the Pleadings filed by Jessica Fisher, Deborah Kempl, Patti Krogmann, Maryland Crime Victims' Resource Center, Inc., Roberta Roper.(Butler, Russell) Modified on 9/12/2018 (bmhs, Deputy Clerk). (Entered: 09/11/2018)

09/12/2018

157 QC NOTICE: 156 Response filed by Jessica Fisher, Roberta Roper, Maryland Crime Victims' Resource Center, Inc., Deborah Kempl, Patti Krogmann was filed incorrectly. **Incorrect event selected. Please refile using the event under Responses and Replies −> Response to Motion. It has been noted as FILED IN ERROR, and the document link has been disabled. (bmhs, Deputy Clerk) (Entered: 09/12/2018)

09/12/2018

158 RESPONSE to Motion re 142 Cross MOTION for Judgment on the Pleadings (Partial Judgment) and Response in Opposition to Plaintiffs' Motion for Partial Judgment on the Pleadings and Injunction, Amici Position in Support of Defendants Cross−Motion for Partial Judgment on the Pleadings filed by Jessica Fisher, Deborah Kempl, Patti Krogmann, Maryland Crime Victims' Resource Center, Inc., Roberta Roper.(Butler, Russell) (Entered: 09/12/2018)

09/14/2018

159 (FILED IN ERROR) Supplemental to 142 Cross MOTION for Judgment on the Pleadings (Partial Judgment) and Response in Opposition to Plaintiffs' Motion for Partial Judgment on the Pleadings and Injunction, filed by David Blumberg, Dayena M. Corcoran, Larry Hogan, Stephen Moyer (Attachments: # 1 Exhibit)(Doyle, Michael) Modified on 9/17/2018 (bmhs, Deputy Clerk). (Entered: 09/14/2018)

09/17/2018

160 QC NOTICE: 159 Supplemental filed by David Blumberg, Dayena M. Corcoran, Stephen Moyer, Larry Hogan was filed incorrectly. **Incorrect event selected. Please refile using the event under Responses and Replies −> Reply to Response to Motion. It has been noted as FILED IN ERROR, and the

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09/17/2018 09/17/2018
09/17/2018 09/17/2018 09/18/2018 09/18/2018
09/18/2018 09/21/2018 09/21/2018

document link has been disabled. (bmhs, Deputy Clerk) (Entered: 09/17/2018)
161 REPLY to Response to Motion re 142 Cross MOTION for Judgment on the Pleadings (Partial Judgment) and Response in Opposition to Plaintiffs' Motion for Partial Judgment on the Pleadings and Injunction, (Supplemental Legal Authority) filed by David Blumberg, Dayena M. Corcoran, Larry Hogan, Stephen Moyer. (Attachments: # 1 Exhibit)(Doyle, Michael) (Entered: 09/17/2018)
162 (FILED IN ERROR) RESPONSE in Opposition re 154 MOTION for Protective Order (confidentiality protective order) & Conditional Cross Motion Challenging Defendants' Designation of Materials as 'Confidential' filed by Nathaniel Foster, Maryland Restorative Justice Initiative, Calvin McNeill, Kenneth Tucker. (Attachments: # 1 Attachment Index to Exhibits, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Text of Proposed Order)(Simpson, Richard) Modified on 9/18/2018 (bmhs, Deputy Clerk). (Entered: 09/17/2018)
163 −SEALED − NOTICE of Filing Under Seal Exhibits 5 − 12 to Plaintiffs' Opposition and Conditional Cross Motion by Nathaniel Foster, Maryland Restorative Justice Initiative, Calvin McNeill, Kenneth Tucker re 162 Response in Opposition to Motion,, (Attachments: # 1 Attachment Index to Exhibits, # 2 Exhibit 5, # 3 Exhibit 6, # 4 Exhibit 7, # 5 Exhibit 8, # 6 Exhibit 9, # 7 Exhibit 10, # 8 Exhibit 11, # 9 Exhibit 12, # 10 Exhibit 13, # 11 Exhibit 14, # 12 Exhibit 15, # 13 Exhibit 16, # 14 Exhibit 17, # 15 Exhibit 18, # 16 Certificate of Service)(Simpson, Richard) (Entered: 09/17/2018)
164 Consent MOTION to Seal re ECF No. 163, Exhibits 5 −18 by Nathaniel Foster, Maryland Restorative Justice Initiative, Calvin McNeill, Kenneth Tucker(Simpson, Richard) (Entered: 09/17/2018)
165 QC NOTICE: 162 Response in Opposition to Motion filed by Kenneth Tucker, Nathaniel Foster, Maryland Restorative Justice Initiative, Calvin McNeill was filed incorrectly. **Incorrect event selected. Please refile using the event under Motions: Miscellaneous Relief. The event will give you a text box to describe the type of motion and include the Response in Opposition. It has been noted as FILED IN ERROR, and the document link has been disabled. (bmhs, Deputy Clerk) (Entered: 09/18/2018)
166 Consent MOTION re 154 MOTION for Protective Order (confidentiality protective order) Plaintiffs' Opposition to Defendants' Motion for Protective Order and Conditional Cross Motion Challenging Defendants' Designation of Materials as 'Confidential' by Nathaniel Foster, Maryland Restorative Justice Initiative, Calvin McNeill, Kenneth Tucker (Attachments: # 1 Attachment Index to Exhibits, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Text of Proposed Order)(Simpson, Richard) (Entered: 09/18/2018)
167 ORDER granting 164 Consent MOTION to Seal re ECF No. 163, Exhibits 5 −18. Signed by Judge Ellen L. Hollander on 9/18/2018. (kw2s, Deputy Clerk) (Entered: 09/18/2018)
168 REPLY to Response to Motion re 166 Consent MOTION re 154 MOTION for Protective Order (confidentiality protective order) Plaintiffs' Opposition to Defendants' Motion for Protective Order and Conditional Cross Motion Challenging Defendants' Designation o f Materials as Confidential filed by David Blumberg, Dayena M. Corcoran, Larry Hogan, Stephen Moyer.(Arnquist, Lisa) (Entered: 09/21/2018)
169 (FILED IN ERROR) MOTION re 134 MOTION for Judgment on the Pleadings and an Injunction Regarding the Unconstitutional Role of the Governor, 142 Cross MOTION for Judgment on the Pleadings (Partial Judgment) and Response in Opposition to Plaintiffs' Motion for Partial Judgment on the Pleadings and Injunction, PLAINTIFFS REPLY IN SUPPORT OF THEIR MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS AND OPPOSITION TO DEFENDANTS CROSS−MOTION by Nathaniel Foster, Maryland Restorative Justice Initiative, Calvin

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09/24/2018
09/24/2018 09/24/2018 09/24/2018 09/24/2018
09/24/2018 09/25/2018 10/03/2018 10/03/2018 10/05/2018 10/09/2018 10/10/2018

McNeill, Kenneth Tucker (Attachments: # 1 Exhibit 1)(Simpson, Richard) Modified on 9/24/2018 (bmhs, Deputy Clerk). (Entered: 09/21/2018)
170 QC NOTICE: 169 Motion for Miscellaneous Relief filed by Kenneth Tucker, Nathaniel Foster, Maryland Restorative Justice Initiative, Calvin McNeill was filed incorrectly. **Incorrect event selected. Please refile using the event under Responses and Replies −> Reply to Response to Motion. It has been noted as FILED IN ERROR, and the document link has been disabled. (bmhs, Deputy Clerk) (Entered: 09/24/2018)
171 REPLY to Response to Motion re 134 MOTION for Judgment on the Pleadings and an Injunction Regarding the Unconstitutional Role of the Governor filed by Nathaniel Foster, Maryland Restorative Justice Initiative, Calvin McNeill, Kenneth Tucker. (Attachments: # 1 Exhibit 1)(Simpson, Richard) (Entered: 09/24/2018)
172 MOTION to Compel by Nathaniel Foster, Maryland Restorative Justice Initiative, Calvin McNeill, Kenneth Tucker (Attachments: # 1 Attachment Index to Exhibits, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11)(Borja, Mary) (Entered: 09/24/2018)
173 −SEALED − NOTICE of Filing Under Seal Exhibits 10 and 11 to Motion to Compel by Nathaniel Foster, Maryland Restorative Justice Initiative, Calvin McNeill, Kenneth Tucker re 172 MOTION to Compel (Attachments: # 1 Exhibit 10, # 2 Exhibit 11, # 3 Certificate of Service)(Borja, Mary) (Entered: 09/24/2018)
174 RESPONSE to Motion re 154 MOTION for Protective Order (confidentiality protective order) AMICI POSITION ON THE PENDING MOTIONS FOR A PROTECTIVE ORDER AND AMICI'S CROSS−MOTION ASSERTED TO "ENSURE" THE VICTIMS PRIVACY, DIGNITY, AND FAIRNESS RIGHTS "FORTHWITH", AS REQUIRED BY 18 U.S.C. §3771(D)(3) filed by Jessica Fisher, Deborah Kempl, Patti Krogmann, Maryland Crime Victims' Resource Center, Inc., Roberta Roper. (Attachments: # 1 Attachment Attachment A ACLU MRJI Joint Report, # 2 Attachment Attachment B MRJI Brochure, # 3 Attachment Attachment C MRJI ACLU Carter Amicus, # 4 Attachment Attachment D MRJI Amicus Adams−Bey, # 5 Attachment Attachment E Bermudez Order, # 6 Text of Proposed Order Draft of Temporary Protective Order)(Butler, Russell) (Entered: 09/24/2018)
175 MOTION to Seal re ECF No. 173, Exhibits 10 and 11 by Nathaniel Foster, Maryland Restorative Justice Initiative, Calvin McNeill, Kenneth Tucker(Borja, Mary) (Entered: 09/24/2018)
176 PAPERLESS ORDER granting ECF 175 Motion to Seal re: ECF 173, Exhibits 10 and 11. Signed by Magistrate Judge J. Mark Coulson on 9/25/2018. (daws, Chambers) (Entered: 09/25/2018)
177 RESPONSE in Opposition re 172 MOTION to Compel filed by David Blumberg, Dayena M. Corcoran, Larry Hogan, Stephen Moyer. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8)(Baron, Susan) (Entered: 10/03/2018)
178 NOTICE by David Blumberg, Dayena M. Corcoran, Larry Hogan, Stephen Moyer of Filing of Corrected Exhibit 8 (Attachments: # 1 Exhibit 8)(Baron, Susan) (Entered: 10/03/2018)
179 REPLY to Response to Motion re 169 MOTION re 134 MOTION for Judgment on the Pleadings and an Injunction Regarding the Unconstitutional Role of the Governor, 142 Cross MOTION for Judgment on the Pleadings (Partial Judgment) and Response in Opposition to Plaintiffs& filed by David Blumberg, Dayena M. Corcoran, Larry Hogan, Stephen Moyer.(Doyle, Michael) (Entered: 10/05/2018)
180 (WITHDRAWN) MOTION to Strike 174 Response to Motion by Maryland Restorative Justice Initiative (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Borja, Mary) Modified on 10/25/2018 (bmhs, Deputy Clerk). (Entered: 10/09/2018)
181 RESPONSE in Support re 172 MOTION to Compel filed by Maryland Restorative Justice Initiative. (Attachments: # 1 Exhibit 1)(Borja, Mary) (Entered: 10/10/2018)

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10/11/2018

182 RESPONSE in Opposition re 180 MOTION to Strike 174 Response to Motion,,, Amicis Response in Opposition to Plaintiffs' Motion to Strike filed by Jessica Fisher, Deborah Kempl, Patti Krogmann, Maryland Crime Victims' Resource Center, Inc., Roberta Roper.(Butler, Russell) (Entered: 10/11/2018)

10/16/2018 183 NOTICE of Appearance by Edward John Kelley on behalf of All Defendants (Kelley, Edward) (Entered: 10/16/2018)

10/17/2018 184 MEMORANDUM OPINION. Signed by Magistrate Judge J. Mark Coulson on 10/17/2018. (bmhs, Deputy Clerk) (Entered: 10/17/2018)

10/17/2018

185 PROTECTIVE ORDER granting in part and denying in part 154 the State's Motion for Protective Order Regarding Confidentiality of Discovery Material; and granting in part and denying in part 166 Plaintiff's Opposition and Counter Motion Challenging Confidentiality Designation. Signed by Magistrate Judge J. Mark Coulson on 10/17/2018. (bmhs, Deputy Clerk) (Entered: 10/17/2018)

10/25/2018 186 NOTICE by Maryland Restorative Justice Initiative re 180 MOTION to Strike 174 Response to Motion,,, (Borja, Mary) (Entered: 10/25/2018)

10/25/2018 187 MARGINAL ORDER approving 186 Notice of Withdrawal of Motion to Strike filed by Maryland Restorative Justice Initiative. Signed by Judge Ellen L. Hollander on 10/25/2018. (bmhs, Deputy Clerk) (Entered: 10/25/2018)

10/25/2018 188 MEMORANDUM OPINION. Signed by Magistrate Judge J. Mark Coulson on 10/25/2018. (bmhs, Deputy Clerk) (Entered: 10/25/2018)

10/25/2018 189 ORDER granting in part and denying in part 172 Plaintiffs' Motion to Compel. Signed by Magistrate Judge J. Mark Coulson on 10/25/2018. (bmhs, Deputy Clerk) (Entered: 10/25/2018)

10/30/2018 190 Consent MOTION for Extension of Time to Appeal October 17 and 25, 2018 Discovery Orders by Maryland Restorative Justice Initiative (Attachments: # 1 Text of Proposed Order)(Borja, Mary) (Entered: 10/30/2018)

10/30/2018 191 ORDER granting 190 Consent Motion for Extension of Time to Appeal October 17 and 25, 2018 Discovery Orders. Signed by Judge Ellen L. Hollander on 10/30/2018. (bmhs, Deputy Clerk) (Entered: 10/30/2018)

11/06/2018 192 MOTION to Withdraw as Attorney Steven M. Sullivan by David Blumberg, Dayena M. Corcoran, Larry Hogan, Stephen Moyer (Attachments: # 1 Text of Proposed Order)(Bernhardt, Julia) (Entered: 11/06/2018)

11/07/2018 193 ORDER granting Defendants' 192 Motion to Withdraw as Attorney. Attorney Steven M Sullivan terminated. Signed by Judge Ellen L. Hollander on 11/6/2018. (dass, Deputy Clerk) (Entered: 11/07/2018)

11/21/2018

194 Consent MOTION for Extension of Time to File a Motion to to Revise Third Amended Scheduling Order by David Blumberg, Dayena M. Corcoran, Larry Hogan, Stephen Moyer (Attachments: # 1 Text of Proposed Order)(Baron, Susan) (Entered: 11/21/2018)

11/21/2018 195 ORDER granting 194 Defendants' Consent Motion for Extension of Time. Signed by Judge Ellen L. Hollander on 11/21/2018. (bmhs, Deputy Clerk) (Entered: 11/26/2018)

12/06/2018

196 Second MOTION for Extension of Time (Consent) to File a Motion to Revise Third Amended Scheduling Order by David Blumberg, Dayena M. Corcoran, Larry Hogan, Stephen Moyer (Attachments: # 1 Text of Proposed Order)(Baron, Susan) (Entered: 12/06/2018)

12/06/2018 197 ORDER granting 196 Defendants' Second Consent Motion for Extension of Time. Signed by Judge Ellen L. Hollander on 12/6/2018. (bmhs, Deputy Clerk) (Entered: 12/07/2018)

01/04/2019

198 Consent MOTION for Extension of Time for Discovery and Modify Scheduling Order by Nathaniel Foster, Maryland Restorative Justice Initiative, Calvin McNeill, Kenneth Tucker (Attachments: # 1 Text of Proposed Order Amended Scheduling)(Borja, Mary) (Entered: 01/04/2019)

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01/04/2019 199 Fourth Amended Scheduling Order. Signed by Judge Ellen L. Hollander on 1/4/2019. (bmhs, Deputy Clerk) (Entered: 01/07/2019)

01/04/2019

Set/Reset Deadlines: Status Report due by 3/5/2019. (bmhs, Deputy Clerk) (Entered: 01/07/2019)

02/19/2019 200 STATUS REPORT Concerning Discovery by David Blumberg, Dayena M. Corcoran, Larry Hogan, Stephen Moyer(Baron, Susan) (Entered: 02/19/2019)

03/01/2019 201 ORDER denying without prejudice 134 142 Motions for Judgment on the Pleadings. Signed by Judge Ellen L. Hollander on 3/1/2019. (bmhs, Deputy Clerk) (Entered: 03/04/2019)

03/05/2019 202 STATUS REPORT concerning discovery by David Blumberg, Dayena M. Corcoran, Larry Hogan, Stephen Moyer(Baron, Susan) (Entered: 03/05/2019)

03/21/2019

203 PAPERLESS ORDER: Pursuant to today's conference call, the new deadline for outstanding document discovery and related privilege logs is April 12, 2019. On April 24, 2019 at 9:30 a.m. the parties will have another status call to determine the next steps for moving forward. Signed by Magistrate Judge J. Mark Coulson on 3/21/2019. (daws, Chambers) (Entered: 03/21/2019)

03/21/2019

Telephone Status Conference held on 3/21/2019 before Magistrate Judge J. Mark Coulson. (kw2s, Deputy Clerk) (Entered: 03/21/2019)

04/02/2019 204 LETTER to Counsel re: U.S. Court of Appeals Decision. Signed by Judge Ellen L. Hollander on 4/2/2019. (hmls, Deputy Clerk) (Entered: 04/03/2019)

04/24/2019

205 PAPERLESS ORDER: A discovery status conference call is scheduled for May 7, 2019 at 4:30 p.m. If the parties jointly conclude that the call is unnecessary, please contact Chambers in advance of the call. Signed by Magistrate Judge J. Mark Coulson on 4/24/2019. (daws, Chambers) (Entered: 04/24/2019)

04/24/2019

Discovery Status Conference held on 4/24/2019 before Magistrate Judge J. Mark Coulson. (bmhs, Deputy Clerk) (Entered: 04/24/2019)

05/02/2019

206 PAPERLESS ORDER: Pursuant to the Parties' request sent to chambers, the discovery status conference call scheduled for May 7, 2019 at 4:30 p.m. is CANCELLED. Any subsequent issues may be addressed by a written joint status report. Signed by Magistrate Judge J. Mark Coulson on 5/2/2019. (daws, Chambers) (Entered: 05/02/2019)

06/11/2019 207 NOTICE by Stephen Moyer of Substitution of Party (Doyle, Michael) (Entered: 06/11/2019)

06/20/2019

208 MOTION for Reconsideration of September 27, 2017 Order by Nathaniel Foster, Maryland Restorative Justice Initiative, Calvin McNeill, Kenneth Tucker (Attachments: # 1 Exhibit 1 MRJIs Motion for Reconsideration, # 2 Exhibit 2 Proposed Order, # 3 Exhibit 3 Memorandum in Support (Redacted), # 4 Exhibit 4 MRJI Memo, Ex. 1, # 5 Exhibit 5 MRJI Memo, Ex. 2, # 6 Exhibit 6 MRJI Memo, Ex. 3, # 7 Exhibit 7 MRJI Memo, Ex. 4, # 8 Exhibit 8 MRJI Memo, Ex. 5, # 9 Exhibit 9 MRJI Memo, Ex. 6, # 10 Exhibit 10 MRJI Memo, Ex. 7, # 11 Exhibit 11 MRJI Memo, Ex. 8, # 12 Exhibit 12 MRJI Memo, Ex. 9, # 13 Exhibit 13 MRJI Memo, Ex. 10, # 14 Exhibit 14 MRJI Memo, Ex. 11, # 15 Exhibit 15 Defs Opposition, # 16 Exhibit 16 Defs Opp, Ex. 1, # 17 Exhibit 17 Defs Opp, Ex. 2, # 18 Exhibit 18 Defs Opp, Ex. 3, # 19 Exhibit 19 Defs Opp, Ex. 4, # 20 Exhibit 20 Defs Opp, Ex. 5, # 21 Exhibit 21 MRJI Reply)(Borja, Mary) (Entered: 06/20/2019)

06/20/2019

209 −SEALED − NOTICE of Filing Under Seal Motion for Reconsideration Exhibits 5−12 (MRJI Memo, Exs. 2−9) and 18−20 (Defs Opp Exs. 3−5) by Nathaniel Foster, Maryland Restorative Justice Initiative, Calvin McNeill, Kenneth Tucker (Attachments: # 1 Exhibit 5 MRJI Memo, Ex. 2, # 2 Exhibit 6 MRJI Memo, Ex. 3, # 3 Exhibit 7 MRJI Memo, Ex. 4, # 4 Exhibit 8 MRJI Memo, Ex. 5, # 5 Exhibit 9 MRJI Memo, Ex. 6, # 6 Exhibit 10 MRJI Memo, Ex. 7, # 7 Exhibit 11 MRJI Memo, Ex. 8, # 8 Exhibit 12 MRJI Memo, Ex. 9, # 9 Exhibit 18 Defs Opp, Ex. 3, # 10 Exhibit 19 Defs Opp, Ex. 4, # 11 Exhibit 20 Defs Opp, Ex. 5, # 12 Certificate of Service)(Borja, Mary) (Entered: 06/20/2019)

Case: 1:16-cv-1021 As of: 02/04/2020 02:15 AM EST 23 of 24

06/20/2019

210 Joint MOTION to Seal ECF No. 209, Exhibits 5−12 (MRJI Memo, Exs. 2−9) and 18−20 (Defs Opp, Exs. 3−5) by Nathaniel Foster, Maryland Restorative Justice Initiative, Calvin McNeill, Kenneth Tucker (Attachments: # 1 Text of Proposed Order)(Borja, Mary) (Entered: 06/20/2019)

06/21/2019 211 ORDER Granting 210 Motion to Seal. Signed by Judge Ellen L. Hollander on 6/21/2019. (bas, Deputy Clerk) (Entered: 06/21/2019)

06/21/2019 212 UNREDACTED DOCUMENT (Borja, Mary) (Entered: 06/21/2019)

06/24/2019 213 MOTION for Leave to File Motion for Summary Judgment and to Stay Discovery by David Blumberg, Dayena M. Corcoran, Robert L. Green, Larry Hogan (Attachments: # 1 Exhibit, # 2 Supplement, # 3 Exhibit)(Doyle, Michael) (Entered: 06/24/2019)

07/08/2019 214 RESPONSE to Motion re 213 MOTION for Leave to File Motion for Summary Judgment and to Stay Discovery filed by Maryland Restorative Justice Initiative.(Borja, Mary) (Entered: 07/08/2019)

07/15/2019 215 MEMORANDUM OPINION. Signed by Magistrate Judge J. Mark Coulson on 7/15/2019. (bmhs, Deputy Clerk) (Entered: 07/15/2019)

07/15/2019 216 ORDER denying 208 Plaintiff's Motion for Reconsideration. Signed by Magistrate Judge J. Mark Coulson on 7/15/2019. (bmhs, Deputy Clerk) (Entered: 07/15/2019)

07/22/2019 217 REPLY to Response to Motion re 213 MOTION for Leave to File Motion for Summary Judgment and to Stay Discovery filed by David Blumberg, Dayena M. Corcoran, Robert L. Green, Larry Hogan.(Baron, Susan) (Entered: 07/22/2019)

08/05/2019 218 ORDER denying 213 Motion for Leave to File Motion for Summary Judgment and to Stay Discovery. Signed by Judge Ellen L. Hollander on 8/5/2019. (bmhs, Deputy Clerk) (Entered: 08/05/2019)

10/25/2019 219 STATUS REPORT ON BEHALF OF ALL PARTIES by Maryland Restorative Justice Initiative (Attachments: # 1 Text of Proposed Order)(Borja, Mary) (Entered: 10/25/2019)

10/25/2019 220 FIFTH AMENDED SCHEDULING ORDER: Status Report due by 2/14/2020. Signed by Judge Ellen L. Hollander on 10/25/2019. (bmhs, Deputy Clerk) (Entered: 10/25/2019)

11/18/2019 221 NOTICE of Appearance by Ashley−Anne Lopez Criss on behalf of Nathaniel Foster, Maryland Restorative Justice Initiative, Calvin McNeill, Kenneth Tucker (Criss, Ashley−Anne) (Entered: 11/18/2019)

11/20/2019 222 NOTICE of Appearance by Charles C Lemley on behalf of All Plaintiffs (Lemley, Charles) (Entered: 11/20/2019)

12/02/2019 223 Consent MOTION for Extension of Time to Submit Status Report by Nathaniel Foster, Maryland Restorative Justice Initiative, Calvin McNeill, Kenneth Tucker (Attachments: # 1 Attachment Proposed Order)(Borja, Mary) (Entered: 12/02/2019)

12/02/2019 224 ORDER granting 223 Plaintiffs' Consent Motion to Extend the Deadline to Submit a Status Report. Signed by Judge Ellen L. Hollander on 12/2/2019. (bmhs, Deputy Clerk) (Entered: 12/03/2019)

12/06/2019 225 Consent MOTION for Extension of Time to Submit Status Report by Nathaniel Foster, Maryland Restorative Justice Initiative, Calvin McNeill, Kenneth Tucker (Attachments: # 1 Attachment Proposed Order)(Borja, Mary) (Entered: 12/06/2019)

12/06/2019 226 ORDER granting 225 Plaintiffs' Consent Motion for Extension of Time. Signed by Judge Ellen L. Hollander on 12/6/2019. (bmhs, Deputy Clerk) (Entered: 12/06/2019)

12/13/2019 227 Consent MOTION for Extension of Time by David Blumberg, Dayena M. Corcoran, Robert L. Green, Larry Hogan (Attachments: # 1 Text of Proposed Order)(Baron, Susan) (Entered: 12/13/2019)

12/13/2019 228 ORDER Granting 227 Motion for Extension of Time. Signed by Judge Ellen L. Hollander on 12/13/2019. (bas, Deputy Clerk) (Entered: 12/16/2019)

Case: 1:16-cv-1021 As of: 02/04/2020 02:15 AM EST 24 of 24

12/26/2019 229 MOTION to Withdraw Russell P. Butler by Jessica Fisher, Deborah Kempl, Patti Krogmann, Maryland Crime Victims' Resource Center, Inc., Roberta Roper(Butler, Russell) (Entered: 12/26/2019)

12/26/2019 230 MARGINAL ORDER approving 229 Motion to Withdraw as Counsel. Signed by Judge Ellen L. Hollander on 12/26/2019. (bmhs, Deputy Clerk) Modified on 12/26/2019 (bmhs, Deputy Clerk). (Entered: 12/26/2019)

01/03/2020 231 Consent MOTION for Extension of Time to Submit Status Report by Nathaniel Foster, Maryland Restorative Justice Initiative, Calvin McNeill, Kenneth Tucker (Attachments: # 1 Attachment Proposed Order)(Borja, Mary) (Entered: 01/03/2020)

01/03/2020 232 ORDER granting 231 Plaintiffs' Consent Motion to Extend Time to Submit a Status Report. Signed by Judge Ellen L. Hollander on 1/3/2020. (bmhs, Deputy Clerk) (Entered: 01/06/2020)

01/17/2020 233 Consent MOTION for Extension of Time to Submit Status Report by Nathaniel Foster, Maryland Restorative Justice Initiative, Calvin McNeill, Kenneth Tucker(Borja, Mary) (Entered: 01/17/2020)

01/17/2020 234 ORDER granting 233 Plaintiffs' Consent Motion for Extension of Time. Signed by Judge Ellen L. Hollander on 1/17/2020. (bmhs, Deputy Clerk) (Entered: 01/21/2020)

01/21/2020 235 Consent MOTION for Extension of Time of Deadline to Submit a Status Report by David Blumberg, Dayena M. Corcoran, Robert L. Green, Larry Hogan (Attachments: # 1 Text of Proposed Order)(Baron, Susan) (Entered: 01/21/2020)

01/21/2020 236 ORDER granting 235 Consent MOTION for Extension of Time of Deadline to Submit a Status Report. Signed by Judge Ellen L. Hollander on 1/21/2020. (kw2s, Deputy Clerk) (Entered: 01/22/2020)

01/24/2020 237 Consent MOTION for Extension of Time of Deadline to Submit a Status Report by David Blumberg, Dayena M. Corcoran, Robert L. Green, Larry Hogan (Attachments: # 1 Text of Proposed Order)(Baron, Susan) (Entered: 01/24/2020)

01/24/2020 238 ORDER granting 237 Defendants' Consent Motion for Extension of Time. Signed by Judge Ellen L. Hollander on 1/24/2020. (bmhs, Deputy Clerk) (Entered: 01/24/2020)

01/31/2020

Telephone Status Conference held on 1/31/2020 before Judge Ellen L. Hollander. (cags, Deputy Clerk) (Entered: 01/31/2020)

02/03/2020 239 NOTICE by Nathaniel Foster, Maryland Restorative Justice Initiative, Calvin McNeill, Kenneth Tucker Proposed Order to stay the case. (Criss, Ashley−Anne) (Entered: 02/03/2020)

02/03/2020 240 ORDER STAYING CASE. Signed by Judge Ellen L. Hollander on 2/3/2020. (bmhs, Deputy Clerk) (Entered: 02/03/2020)