Covington v. Leibach

Filing 9

MEMORANDUM AND ORDER: The Clerk is DIRECTED to serve copies of the petition and this Memorandum and Order upon Respondent and the Attorney General for The State of Tennessee. However, Respondent will not be ordered to answer becaus e the exhaustion rule calls for its sua sponte dismissal. Accordingly, since Petitioner has failed to bear his burden of showing exhaustion of such state remedies as may be available with respect to his claims, Rust, 17 F.3d at 160, he may not pursu e the sentencing claims, at the present time, in this federal habeas corpus action. Therefore, the Court will DENY a COA. Signed by District Judge J Ronnie Greer on 01/20/2017. (C/M to pro se Petitioner; Respondent and Attorney General for the State of Tennessee with petition) (AMP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT GREENEVILLE
CHRISTOPHER TIMOTHY
COVINGTON,
Petitioner,
v.
BLAIR LEIBACH, Warden,
Respondent.

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No. 2:17-CV-09-JRG-MCLC

MEMORANDUM AND ORDER

Acting pro se, Christopher Timothy Covington (“Petitioner”) filed this petition for a writ
of habeas corpus under 28 U.S.C. § 2254 in the Middle District of Tennessee [Doc. 1].
Petitioner paid the filing fee, and the district court transferred the petition to this Court, based on
venue [Docs. 6-7]. The Court now must examine the petition to determine whether it should be
dismissed or answered by Respondent. See Rule 4 of The Rules Governing Section 2254 Cases
In The United States District Courts. The Clerk is DIRECTED to serve copies of the petition
and this Memorandum and Order upon Respondent and the Attorney General for The State of
Tennessee. However, Respondent will not be ordered to answer because the exhaustion rule calls
for its sua sponte dismissal.
Petitioner, who is in the custody of the Tennessee Department of Correction (“TDOC”),
asserts that the Hawkins County Criminal Court set a six-year total sentence for multiple
convictions, that his Tomis Offender Sentence letter does not reflect his pretrial jail credits,
behavior credits and program credits, that, if his sentence were correctly recalculated to include
these credits, his sentence has “completely expired,” and that he is “now being held illegally”

[Doc. 1 p.6]. Petitioner maintains that his true and final expiration date is June, 9, 2017 and that
he is entitled to at least 180 behavior credits, 156 program credits, and 248 pretrial jail and other
credits [Id. at 6, 20].
A habeas corpus action will lie where a prisoner claims that he has been denied
sentencing credits he has earned under a state’s sentencing reduction programs and requests
receipt of those credits. Greene v. Tenn. Dep’t of Corr., 265 F.3d 369 (6th Cir. 2001). However,
habeas corpus relief will not be granted unless a petitioner has exhausted his available state court
remedies, or available state corrective process is lacking, or resort to such process would be
useless. 28 U.S.C § 2254(b)(1). The exhaustion rule requires total exhaustion of state remedies,
Rose v. Lundy, 455 U.S. 509, 522 (1982) (stating that “a total exhaustion rule promotes comity
and does not unreasonably impair the prisoner’s right to relief), meaning that a petitioner must
have fairly presented each claim for disposition to all levels of appropriate state courts. Baldwin
v. Reese, 541 U.S. 27, 29 (2004); O’Sullivan v. Boerckel, 526 U.S. 838, 845-47 (1999).
A petitioner has not “exhausted the remedies available in the courts of the State, within
the meaning of this section, if he has the right under the law of the State to raise, by any available
procedure, the question presented.” 28 U.S.C. § 2254(c); see Rose, 455 U.S. at 518-19 (“A
rigorously enforced total exhaustion rule will encourage state prisoners to seek full relief first
from the state courts, thus giving those courts the first opportunity to review all claims of
constitutional error.”). It is a petitioner’s burden to show exhaustion of available state court
remedies. Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994).
A prisoner in the custody of TDOC whose sentence is final may seek sentence reduction
credits from TDOC through the Uniform Administrative Procedures Act, see Tenn. Code Ann. §
4-5-101-324; State v. Mullican, No. M2000-207-CCA-R3-CD, 2000 WL 1278170, at *1 (Tenn.

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Crim. App. Sept. 8, 2000) (citing State v. Henry, 946 S.W.2d 833, 834 (Tenn. Crim. App.
1997)); and if dissatisfied with the result, he may seek review of that decision in the Chancery
Court of Davidson County. See Tenn. Code Ann. § 4-5-322(b)(1). If he is unable to obtain relief
in the state chancery court, he may request a declaratory judgment on appeal. See Bonner v.
Tenn. Dep’t of Corr., 84 S.W.3d 576, 583 (Tenn. Ct. App. 2001) (observing that a petitioner
must satisfy certain procedural prerequisites “to filing a petition for declaratory judgment with
the court”).
Here, Petitioner contends (and has filed the paperwork to show) that he has made diligent
and numerous, though ultimately unsuccessful, efforts “to rectify this situation through interinstitutional remedies and through TDOC’s sentence management” [Doc. 1 p.6].

Despite

Petitioner’s attempts to resolve this issue, the record does not disclose that he submitted a
petition for a declaratory order to TDOC; that the petition was denied; that he then pursued
review of the denial of the declaratory order to the Davidson County Chancery Court; that he
was unsuccessful in the state court of equity; and that he, thereafter, sought a declaratory
judgment in the Tennessee Court of Appeals.
Accordingly, since Petitioner has failed to bear his burden of showing exhaustion of such
state remedies as may be available with respect to his claims, Rust, 17 F.3d at 160, he may not
pursue the sentencing claims, at the present time, in this federal habeas corpus action.
The Court must now consider whether to issue a certificate of appealability (COA)
should Petitioner file a notice of appeal. After reviewing the claim under the appropriate
standards in Slack v. McDaniel, 529 U.S. 473 (2000), the Court finds that Petitioner has failed to
make a substantial showing of the denial of a constitutional right because jurists of reason would
not disagree about the correctness of the procedural ruling with regard to exhaustion, nor would

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they find debatable or wrong the Court’s conclusion that exhaustion has not been shown. See id.;
Murphy v. Ohio, 263 F.3d 466, 467 (6th Cir. 2001); Porterfield v. Bell, 258 F.3d 484, 487 (6th
Cir. 2001). Therefore, the Court will DENY a COA. 28 U.S.C. § 2253; Fed. R. App. P. 22(b).
In addition to the above, this Court has carefully reviewed this case pursuant to 28 U.S.C.
§ 1915(a) and hereby CERTIFIES that any appeal from this action would not be taken in good
faith. Hence, should Petitioner file a notice of appeal, he is DENIED leave to proceed in forma
pauperis on appeal. See Rule 24 of the Federal Rules of Appellate Procedure.
AN APPROPRIATE ORDER WILL ENTER.

s/J. RONNIE GREER
UNITED STATES DISTRICT JUDGE

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