United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION AND ORDER
C. REEVES UNITED STATES DISTRICT JUDGE
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.[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
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
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]
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.]
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.
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.
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,
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.
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)).
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 ...