Davenport v. Ormond
MEMORANDUM OPINION & ORDER: 1. Petitioner Ryan Davenports petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 [Record No. 1] is DENIED. 2. Judgment shall be entered contemporaneously with this Memorandum Opinion and Order. 3. This action is DISMISSED and STRICKEN from the Courts docket.. Signed by Judge Danny C. Reeves on 9/20/2017.(JMB)cc: COR, Ryan Davenport via US Mail
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
J. RAY ORMOND, Warden,
Civil Action No. 6: 16-295-DCR
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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.
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
Davenport has since been transferred to the United States Penitentiary-Atlanta in Atlanta,
Georgia. [Record No. 5].
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-cr19-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 19year 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.
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.
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-TRMHBG-2 (E.D. Tenn. 2000)] He then remained in state custody until he was returned to the
federal authorities in March 2016. [Record No. 1, p. 2-3]
Calculation of a federal prisoner’s sentence (including its commencement date and
any credits for custody before the sentence is imposed) is governed by federal statute:
(a) A sentence to a term of imprisonment commences on the date the
defendant is received in custody awaiting transportation to, or arrives
voluntarily to commence service of sentence at, the official detention facility
at which the sentence is to be served.
(b) A defendant shall be given credit toward the service of a term of
imprisonment for any time he has spent in official detention prior to the date
the sentence commences
(1) as a result of the offense for which the sentence was imposed; or
(2) as a result of any other charge for which the defendant was arrested after
the commission of the offense for which the sentence was imposed;
that has not been credited against another sentence.
18 U.S.C. § 3585.
Where, as here, the federal court is silent on the issue of concurrent or consecutive
sentences, the federal sentence is consecutive pursuant to 18 U.S.C. § 3584. See 18 U.S.C.
§ 3584(a) (“Multiple terms of imprisonment imposed at different times runs consecutively
unless the court orders that the terms are to run concurrently.”). Therefore, although
Davenport was sentenced by the federal court in November 2000, the BOP determined that
his federal sentence did not commence until the day he was received into federal custody
in March 2016. 18 U.S.C. § 3585. And while he sought credit for his time spent in state
custody, pursuant to 18 U.S.C. § 3585(b), such credit is available only if that time “has not
been credited against another sentence.” United States v. Wilson, 503 U.S. 329, 337
(1992); Broadwater v. Sanders, 59 F. App’x 112, 113-14 (6th Cir. 2003).
However, Davenport could still obtain relief from the BOP by seeking nunc pro
tunc designation, which is exactly what he attempted to do.
The BOP is granted
discretionary placement authority under 18 U.S.C. § 3621(b) to designate the place of a
federal prisoner’s imprisonment. Included in this authority is the BOP’s power to have a
state facility designated nunc pro tunc as a place of federal confinement where a prisoner
could gain credit against his federal sentence for the time he served there, effectively
reducing the length of his federal sentence. Barden, 921 F. 2d 476. See also BOP Program
Statement 5160.05 (implementing the rule set forth in Barden). The BOP considered the
factors set forth in Barden and denied Davenport’s request.
In this action, Davenport challenges the BOP’s denial of his request for nunc pro
tunc status on constitutional grounds. Davenport first argues that the BOP’s failure to run
his federal sentence concurrent with his state sentence in accordance with Program
Statement 5160.05 violates the Full Faith and Credit Clause because it treats the Tennessee
“state court judgment like it is just a mere recommendation, instead of a judgment that
should be given full faith and credit.” [Record No. 1 at p. 5-7] However, the Tennessee
state court’s direction that Davenport’s state sentence run concurrent with his federal
sentence is not binding on the federal courts or the BOP, notwithstanding Davenport’s
arguments to the contrary. The Full Faith and Credit Clause requires that credit “be given
in each State to the public Acts, Records and judicial and judicial Proceedings of every
other State.” U.S. Const. art. IV, § 1. See also 28 U.S.C. § 1738. But it does not “compel
‘a state to substitute the statutes of other states for its own statutes dealing with a subject
matter concerning which it is competent to legislate.’” Baker by Thomas v. Gen. Motors
Corp., 522 U.S. 222, 232 (1998) (quoting Pacific Employers Ins. Co. v. Industrial Accident
Comm’n, 306 U.S. 493, 501 (1939). Moreover, “[i]n our American system of dual
sovereignty, each sovereign—whether the Federal Government or a State—is responsible
for ‘the administration of [its own] criminal justice syste[m].’” Setser v. United States, 566
U.S. 231, 241 (2012) (quoting Oregon v. Ice, 555 U.S. 160, 170 (2009) (alterations in
Thus, in light of the Supremacy Clause, U.S. Const. art. VI, cl. 2, while “a state
court may express its intent that a defendant's state sentence run concurrently with a
previously imposed federal sentence, this intent is not binding on federal courts or the
BOP.” United States v. Allen, 124 F. App'x 719, 720 (3d Cir. 2005). “[N]either the federal
courts nor the Bureau are bound in any way by the state court’s direction that the state and
federal sentences run concurrently.” Barden, 921 F.2d at 478 n. 4 (citing U.S. Const., art.
VI, cl. 2). See also Hunter v. Tamez, 662 F.3d 427, 430-431 (5th Cir. 2010) (rejecting the
argument that “the principles of federalism and comity between the state and federal
government as dual sovereigns require the BOP to give effect to the state sentencing court’s
direction that [a prisoner’s] term of imprisonment on his state conviction run concurrently
with his already-imposed term of imprisonment on his federal conviction.”); Banks v.
Wilson, 2009 WL 5125282, at *4 (E.D.Ky.2009). In summary, Davenport’s argument is
without merit because the federal government has the right to administer its own criminal
justice system independent of the system operated by the state of Tennessee.
Davenport next argues that the BOP’s failure to run his federal sentence with his
state sentence violates the Contract Clause of the United States Constitution. He contends
that his plea agreement with Tennessee was based on that state’s agreement that it would
request that the sentencing judge run his state sentence concurrent with his federal
sentence. [Record No. 1, p. 7-8]. According to Davenport, by applying 18 U.S.C. § 3583
in a manner that deprives Davenport of this part of his bargain with Tennessee, the BOP is
using the law in a manner that impairs the obligations of Davenport’s plea agreement with
the state of Tennessee in violation of the Contract Clause. [Id. at p. 8] In making this
argument, Davenport misconstrues the nature of the Contract Clause.
The Contract Clause provides that “[n]o State shall...pass any...Law impairing the
Obligation of Contracts.” U.S. Const. art. I, § 10, cl. 1. In determining whether there has
been a violation of this constitutional provision, “the first inquiry must be whether the state
law has, in fact, operated as a substantial impairment of a contractual relationship.” Allied
Structural Steel Co. v. Spannaus, 438 U.S. 234, 244 (1978). There is no state law at issue
here. Rather, Davenport contends that the BOP’s application of 18 U.S.C. § 3583 deprives
him of his bargain with Tennessee. However, “[b]y its own terms, the clause does not
apply to laws enacted by the federal government.” BellSouth Telecommunications, Inc. v.
Pub. Serv. Comm'n of Kentucky, 380 F. Supp. 2d 820, 827 (E.D. Ky. 2004), aff'd sub nom.
BellSouth Telecommunications, Inc. v. Goss, 142 F. App'x 886 (6th Cir. 2005). See also
Pension Ben. Guar. Corp. v. R.A. Gray & Co., 467 U.S. 717, 732 n. 9 (1984) (“It could not
justifiably be claimed that the Contract Clause applies, either by its own terms or by
convincing historical evidence, to actions of the National Government.”). The BOP’s
conduct in this case does not violate the Contract Clause because this case involves the
interpretation of federal statutes and regulations by a federal law enforcement agency, not
the enactment of a law by a state government.
Davenport’s argument also overlooks the nature of the American dual sovereignty
system, pursuant to which the federal and state governments are each responsible for the
administration of its own criminal justice system. Sester, 566 U.S. at 241. The federal
government has the authority to prosecute and punish a defendant for conduct that is also
punishable under state law under the dual sovereignty doctrine. Heath v. Alabama, 474
U.S. 82, 88 (1985). Thus, the BOP’s denial of Davenport’s request for nunc pro tunc
designation does not violate the Contract Clause because the federal government has a right
as a separate sovereign to administer its own criminal justice system, including the
determination of the date Davenport’s federal sentence would commence. See Bloomgren
v. Belaski, 948 F.2d 688, 691 (10th Cir. 1991) (“The determination by federal authorities
that Bloomgren's federal sentence would run consecutively to his state sentence is a federal
matter which cannot be overridden by a state court provision for concurrent sentencing on
a subsequently-obtained state conviction.”).
Davenport’s constitutional challenges to the BOP’s denial of his request for nunc
pro tunc designation fail and his § 2241 habeas petition filed in this Court is without merit.
Accordingly, it is hereby
ORDERED as follows:
Petitioner Ryan Davenport’s petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2241 [Record No. 1] is DENIED.
Judgment shall be entered contemporaneously with this Memorandum
Opinion and Order.
This action is DISMISSED and STRICKEN from the Court’s docket.
This 20th day of September, 2017.
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