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Davenport v. Ormond

United States District Court, E.D. Kentucky, Southern Division, London

September 20, 2017

RYAN DAVENPORT, Petitioner,
v.
J. RAY ORMOND, Warden, Respondent.

          MEMORANDUM OPINION AND ORDER

          DANNY C. REEVES UNITED STATES DISTRICT JUDGE

         Ryan Davenport is a federal inmate in the custody of the Bureau of Prisons (“BOP”). While confined at the United States Penitentiary-McCreary in Pine Knot, Kentucky, Davenport filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241, seeking to challenge the amount of jail time the BOP has credited against his federal sentence.[1][Record. No. 1] Because Davenport is not entitled to habeas relief based on the petition filed in this Court, his petition will be denied and this proceeding will be dismissed.

         I.

         Davenport was originally arrested in 2000 by Tennessee state authorities on a charge of aggravated robbery. [Record No. 1] On March 15, 2000, Davenport was indicted in the United States District Court for the Eastern District of Tennessee on charges related to bank robbery by force or violence. United States v. Davenport, No. 1: 00-cr-19-TRM-HBG-2 (E.D. Tenn. 2000). On November 9, 2000, Davenport pleaded guilty to two counts of a four count indictment. Id. Count One of the indictment included charges of bank robbery by force or violence in violation of 18 U.S.C. § 2113(a) and assault with a deadly weapon in violation of 18 U.S.C. § 2113(d). Count Four charged Davenport with discharging a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c). Id. Davenport was sentenced on the same date by the federal court to a term of imprisonment of 37 months on Count 1, to run consecutively with a term of imprisonment for 120 months on Count 4, for a total term of imprisonment for 157 months, followed by a 5-year term of supervised release. Id.

         Davenport was returned to Tennessee state authorities following his sentencing in federal court and the United States District Court judgment was filed as a detainer. [Record No. 1-1 at United States' Memorandum filed in United States v. Davenport, No. 1: 00-cr-19-TRM-HBG-2 (E.D. Tenn. 2000)] Pursuant to a plea agreement with the state prosecutor, Davenport pleaded guilty in December 2003 in Tennessee state court to four aggravated robberies and second degree murder. [Record No. 1-1, Request for Acceptance of Plea of Guilty]. The state court sentenced Davenport on December 19, 2003, to a 19-year term of imprisonment and indicated in its judgment that the state sentence should run concurrently with his previously-imposed federal sentence. [Record No. 1-1, Tennessee State Court Judgment]

         Davenport's state sentence was satisfied on March 11, 2006. Thereafter, he was transferred to federal custody to commence service of his federal sentence. [Record No. 1] Davenport then sought a nunc pro tunc designation of a state prison facility as the place of service of his federal sentence for the period during which he was in state custody under Barden v. Keohane, 921 F.2d 476 (3d Cir. 1999). [Record No. 1] The BOP considered Davenport's request in light of Barden and in accordance with the factors set out in 18 U.S.C. § 3261(b). However, it denied Davenport's request on November 8, 2006. [Record No. 1-1 at BOP Response to Ryan Davenport] In its denial letter, the BOP cited the nature of Davenport's offense and his criminal history. [Id.] The letter also indicated that the federal sentencing Court was contacted for a position on a retroactive designation and advised that Davenport's sentences should run consecutively. [Id.]

         Davenport is currently attacking the merits of the BOP's denial of his request for nunc pro tunc status. More specifically, he challenges the BOP's consideration of the Barden factors in proceedings pending in the United States District Court for the Eastern District of Tennessee (i.e., the district in which he was sentenced). Before he filed his § 2241 petition in this Court, Davenport filed a pleading captioned “Motion Request for Clarification of Facts and Order for Appropriate Sentence Credit” in his federal criminal case. The United States later filed a response to that motion. United States v. Davenport, No. 1:00-cr-19-TRM-HBG-2 (E.D. Tenn. 2000) at Record No. 82, 84. Since these filings, Davenport has also filed a “Motion for nunc pro tunc credit toward my federal sentence for time spent in the state, ” id. at Record No. 85, a “Motion to Vacate under 28 U.S.C. § 2255, ” id. at Record No. 86, a “Motion of Deliverance from Federal Custody, ” id. at Record No. 87, and a “Motion for Evidentiary Hearing, ” id. at Record No. 93, all in the federal court in Tennessee. In compliance with an order from that Court, the United States has also filed a response to Davenport's § 2255 Motion to Vacate. Id. at Record No. 92. This motion, as well as the other motions referenced above, are all currently pending in the Tennessee federal court. These motions all essentially seek the same relief in one form or another: that is, credit towards Davenport's federal sentence for the time he spent in state custody.

         Davenport argues in the § 2241 petition filed in this Court that the BOP's denial of his request for nunc pro tunc designation violates the “Full Faith and Credit” Clause of the United States Constitution, codified at 28 U.S.C. § 1738, as well as the Contract Clause found at Art. 1, Section 10 of the United States Constitution. [Record No. 1] These arguments are not raised in his motions pending in the United States District Court for the Eastern District of Tennessee. Thus, this Court may consider the constitutional arguments made in Davenport's § 2241 petition without impacting his ongoing efforts to seek relief from the federal sentencing court. However, in light of the pending motions in Davenport's criminal case, this Court will limit its consideration to only the constitutional challenges to the BOP's actions as specifically set forth in the § 2241 petition.

         II.

         In conducting its initial review of this matter as required by 28 U.S.C. § 2243, the Court notes that the petition should be denied “if it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief.” Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (applicable to § 2241 petitions pursuant to Rule 1(b)). In undertaking this review, however, the Court evaluates Davenport's petition under a more lenient standard because he is not represented by an attorney. Erickson v. Pardus, 551 U.S. 89, 94 (2007). At this stage of the proceedings, the Court accepts the petitioner's factual allegations as true and construes all legal claims in his favor. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).

         While the Court has an obligation to liberally construe a complaint filed by a person proceeding without counsel, it has no authority to create arguments or claims that the plaintiff has not made. Coleman v. Shoney's, Inc., 79 F. App'x 155, 157 (6th Cir. 2003) (“Pro se parties must still brief the issues advanced with some effort at developed argumentation.”); Superior Kitchen Designs, Inc. v. Valspar Indus. (U.S.A.), Inc., 263 F.Supp.2d 140, 148 (D. Mass. 2003) (“While the allegations of the complaint are construed favorably to the plaintiff, the court will not read causes of action into the complaint which are not alleged.”). The Court is particularly mindful of this limit to its obligation to liberally construe Davenport's petition in these circumstances, given Davenport's pending motions seeking relief in the United States District Court in the Eastern District of Tennessee. Thus, the Court will limit consideration to Davenport's arguments that the BOP's denial of his request for nunc pro tunc designation violates the Full Faith and Credit Clause of the United States Constitution, codified at 28 U.S.C. § 1738, as well as the Contract Clause found at Art. 1, Section 10 of the United States Constitution.

         III.

         Davenport disputes the date that the BOP has determined his federal sentence commenced. Although he was sentenced in federal court first, Davenport was originally arrested by the State of Tennessee. As a result, he was tried and sentenced by the federal court pursuant to a writ of habeas corpus ad prosequendum before his Tennessee charges were resolved. United States v. Davenport, No. 1:00-cr-19-TRM-HBG-2 (E.D. Tenn. 2000) at Record No. 13, 14. Thus, at the time he was sentenced in federal court, the State of Tennessee had “primary jurisdiction” over him. Ponzi v. Fesseden, 258 U.S. 254, 262 (1922). This is important because a “federal sentence does not begin to run ...when a prisoner in state custody is produced for prosecution in federal court pursuant to a federal writ of habeas corpus ad prosequendum. Rather, the state retains primary jurisdiction over the prisoner, and federal custody commences only when the state authorities relinquish the prisoner on satisfaction of the state obligation.” United States v. Evans, 159 F.3d 908, 912 (4th Cir. 1998) (citing Thomas v. Whalen, 962 F.2d 358, 361 n. 3 (4th Cir.1992); Thomas v. Brewer, 923 F.2d 1361, 1366-67 (9th Cir.1991)).

         Davenport was returned to state authorities following his sentencing in federal court and the United States District Court Judgment was filed as a detainer. [Record No. 1-1 at United States' Memorandum filed in United States v. Davenport, No. 1: 00-cr-19-TRM-HBG-2 (E.D. Tenn. 2000)] He then remained in state ...


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