Banks v. United States of America

Filing 4

ORDER of dismissal; finding as moot 3 Motion; and certifying appeal not taken in good faith. Signed by Chief Judge Jon Phipps McCalla on 07/11/2013. (McCalla, Jon)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
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Petitioner,
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v.
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Cv. No. 12-2175-JPM-dkv
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UNITED STATES OF AMERICA,
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Respondent.
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______________________________________________________________
JOSHUA BANKS,

ORDER OF DISMISSAL
ORDER DENYING PENDING MOTION AS MOOT (ECF No. 3)
AND
ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH
______________________________________________________________
Petitioner Joshua Banks (“Banks”), prison registration number
315203, an inmate at the West Tennessee State Penitentiary (the
“WTSP”) at Henning, Tennessee, has filed a habeas Petition pursuant
to 28 U.S.C. § 2255. (ECF No. 1.) Banks was convicted of violations
of both state and federal law, leading to his present incarceration
in the WTSP. For the following reasons, Banks’ Petition is DENIED.
I.

BACKGROUND
Banks was indicted by a federal grand jury in a one-count

indictment on March 8, 2007. See Indictment, United States v.
Banks, No. 07-20074 (W.D. Tenn. Mar. 8, 2007), ECF No. 1. A twocount superseding indictment was filed on November 27, 2007,
charging Banks with assaulting a mail carrier, in violation of 18
U.S.C. § 111(a)(1) and (b)(Count One); and charging Banks with
possession of a firearm after the conviction of a felony, in
violation

of

18

U.S.C.

§

922(g)(Count

Two).

See

Superseding

Indictment, Banks, No. 07-20074 (W.D. Tenn. Nov. 27, 2007), ECF No.
22. On August 1, 2011, Defendant appeared before United States
District Judge Bernice B. Donald and pled guilty to Count One of
the superseding indictment pursuant to a written plea agreement.
See Minute Entry, Banks, No. 07-20074 (W.D. Tenn. Aug. 1, 2011),
ECF No. 75. On August 11, 2011, Judge Donald sentenced Banks to
nine years of imprisonment, to be served concurrently with state
sentences in case numbers 07-05146, 07-05147, 07-05148, 07-05149,
07-05150, 07-05151, and 07-05152. See Judgment at 3, Banks, No. 0720074 (W.D. Tenn. Aug. 11, 2011), ECF No. 79. Count Two was
dismissed upon motion of the United States. Id. at 1.
On August 2, 2011, Defendant Banks entered pleas of guilty to
three counts of aggravated robbery, one count of attempted robbery,
and three counts of robbery in Shelby County Criminal Court cases
07-05146, 07-05147, 07-05148, 07-05149, 07-05150, 07-05151, and 0705152. Banks alleges that he was sentenced to nine years of
imprisonment for the state offenses. (See ECF No. 1 at 1.)
II.

STANDARD
The first issue before the Court is the remedy Banks must

invoke. “Section 2255 . . . has been conceived to be limited to
those claims which arise from the imposition of the sentence as
distinguished from claims attacking the execution of the sentence.”
Wright v. U.S. Bd. of Parole, 557 F.2d 74, 77 (6th Cir. 1977); see
also United States v. Jalili, 925 F.2d 889, 893 (6th Cir. 1991)
(“Because defendant Jalili is challenging the manner in which the

2

sentence was being executed, rather than the validity of the
sentence itself, Section 2255 does not apply.”).
In his Petition, Banks asserts that the United States has
lodged a federal detainer that prevents his parole from the state
sentences. (See ECF No. 1 at 1.) It is not clear from the Petition
whether Banks contends that he is also entitled to parole on his
federal sentence or whether he is asking to serve out the remainder
of his concurrent sentences in federal, rather than state, custody.
It is, however, clear that Banks is attacking the execution of his
sentence and not the imposition of the sentence. Accordingly,
Banks’ appropriate remedy is a petition under 28 U.S.C. § 2241 and
not under § 2255. See Wright, 557 F.2d at 77. Therefore, the Court
construes Banks’ Petition as arising under § 2241.
Pursuant to § 2241, a court may grant a writ of habeas corpus
if the prisoner demonstrates that “[h]e is in custody in violation
of the Constitution or laws or treaties of the United States.” 28
U.S.C. §§ 2241(a), (c)(3). “[I]t is well established that federal
prisoners are required to exhaust their administrative remedies
before filing a habeas corpus petition under § 2241.” Leslie v.
United States, 89 F. App’x 960, 961 (6th Cir. 2004).
III. ANALYSIS
Banks asserts that he is entitled to relief because the United
States has lodged a federal detainer that prevents his parole from
the state sentences. (See ECF No. 1 at 1.) Additionally, Banks
appears to contend either that he is entitled to parole on his
federal sentence or that he is entitled to serve out the remainder
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of his concurrent sentences in federal, rather than state, custody.
(Id.)

Banks’ claims regarding parole and where he is entitled to

serve out the rest of his sentence are addressed in turn.
A.

Parole

Banks asserts that he is entitled to relief because the United
States has lodged a federal detainer that prevents his parole from
the state sentences and appears to assert that he is entitled to
parole on his federal sentence. There are no grounds, however, for
relief on these claims under 28 U.S.C. § 2241. First, insofar as
Banks argues that he is entitled to parole on his federal sentence,
the Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98 Stat.
1987 (Oct. 12, 1984), abolished parole for federal sentences. See
Terrell v. United States, 564 F.3d 442, 444 (6th Cir. 2009); see
also United States v. Ross, No. 94-1882, 1995 WL 234675, at *1 (6th
Cir. Apr. 20, 1995) (“[P]arole was abolished through the Sentencing
Reform Act, effective November 1, 1987.”).
Second, insofar as Banks bases his Petition on a denial of
the right to parole as to his state sentence, the Petition must be
denied as “[t]here is no constitutional or inherent right of a
convicted person to be conditionally released before the expiration
of a valid sentence.” Crump v. Lafler, 657 F.3d 393, 397 (6th Cir.
2011) (quoting Greenholtz v. Inmates of Neb. Penal & Corr. Complex,
442 U.S. 1, 7 (1979)) (internal quotation marks omitted).
B.

Federal Custody

Banks appears to contend that he is entitled to serve out the
remainder of his concurrent sentences in federal, rather than
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state, custody. There are no grounds, however, for relief on this
claim under 28 U.S.C. § 2241. Federal and state governments are
free to make any agreement between themselves concerning which of
their sentences will be served first. See King v. United States,
No. 96-2515, 1997 WL 580776, at *2 (6th Cir. Sept. 18, 1997) (“A
person who has violated the criminal statutes of both the Federal
and State Governments may not complain of the order in which he is
tried or punished for such offenses.” (quoting United States
v. Dovalina, 711 F.2d 737, 739 (5th Cir. 1983)) (internal quotation
marks

omitted)).

While

the

sovereign

which

first

arrests

an

individual normally acquires priority of jurisdiction for purposes
of incarceration, “the sovereign with priority of jurisdiction
. . . may elect under the doctrine of comity to relinquish it to
another sovereign.” United States v. Warren, 610 F.2d 680, 684-85
(9th Cir. 1980); accord Jones v. Farley, No. 4:12-CV-0671, 2012 WL
4506002, at *3 (N.D. Ohio Sept. 28, 2012). Additionally, an inmate
does not have a protected right to be housed in a particular
institution. See Olim v. Wakinekona, 461 U.S. 238 (1983).
In the instant case, the United States has not demonstrated
any intent to assert primary jurisdiction over Banks, and state
authorities have not relinquished custody over Banks because he has
not satisfied his entire state obligation and has not been released
from his state sentences imposed in 2011. Accordingly, this Court
has no constitutional or statutory authority to direct the Bureau
of Prisons to take custody of a state prisoner or to require the
state to relinquish their custody of a lawfully imprisoned inmate.
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Banks, however, may request the Bureau of Prisons to designate
a particular facility as the place for service of his federal
sentence. Under 18 U.S.C. § 3621, the Bureau of Prisons has the
discretion

to

designate

any

available

penal

or

correctional

facility whether maintained by the federal government or otherwise
as the place for service of a federal sentence. See Thomas v.
Bogan, No. 95-1307, 1995 WL 692987, at *2 (6th Cir. Nov. 17, 1995);
Barden v. Keohane, 921 F.2d 476, 478 (3d Cir. 1990); see also Tapia
v. United States, 131 S. Ct. 2382, 2390-91 (2011) (“A sentencing
court can recommend that the [Bureau of Prisons] place an offender
in a particular facility or program[, but] decisionmaking authority
rests with the [Bureau of Prisons].”). Accordingly, there is an
administrative remedy available to Banks which must be exhausted
before this Court can consider a claim pursuant to § 2241. See
Boggs v. Pearson, No. 07-2079-JDB/sta, 2008 WL 189852, at *1 (W.D.
Tenn. Jan. 22, 2008) (citing United States v. Westmoreland, 974
F.2d 736, 737-38 (6th Cir. 1992)) (holding that exhaustion of
administrative

remedies

within

the

Bureau

of

Prisons

is

a

prerequisite to habeas relief). Because Banks fails to allege or
demonstrate that he has pursued his administrative remedies with
the Bureau of Prisons as required before this Court can provide
habeas relief, there is no basis for relief on this claim under 28
U.S.C. § 2241.
In summary, as “it appears from the application that the
applicant or person detained is not entitled” to any relief, 28

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U.S.C. § 2243, Banks’ Petition is DENIED and the pending Motion
(ECF No. 3) is DENIED as MOOT.1
IV.

APPEAL ISSUES
Federal prisoners who file petitions pursuant to 28 U.S.C.

§

2241

challenging

their

federal

custody

need

not

obtain

certificates of appealability under 28 U.S.C. § 2253(c)(1). Durham
v. U.S. Parole Comm’n, 306 F. App’x 225, 229 (6th Cir. 2009).2 A
habeas petitioner seeking to appeal, however, must pay the $455
filing fee required by 28 U.S.C. §§ 1913 and 1917. To appeal in
forma pauperis in a habeas case under 28 U.S.C. § 2241, the
petitioner must obtain pauper status pursuant to Federal Rule of
Appellate Procedure 24(a). Kincade v. Sparkman, 117 F.3d 949, 952
(6th Cir. 1997). Rule 24(a) provides that a party seeking pauper
status on appeal must first file a motion in the district court,
along with a supporting affidavit. Fed. R. App. P. 24(a)(1).
However, Rule 24(a) also provides that if the district court
certifies that an appeal would not be taken in good faith, or
otherwise denies leave to appeal in forma pauperis, the petitioner
must file his motion to proceed in forma pauperis in the appellate
court. See Fed. R. App. P. 24(a)(3), (5).

1

When Banks has exhausted his administrative remedies, he may then
seek judicial relief pursuant to 28 U.S.C. § 2241. See United States v. Wilson,
503 U.S. 329, 335 (1992).
2

To the extent this habeas Petition may be construed as merely
complaining of continued detention by the Tennessee Department of Corrections,
Banks cannot make a substantial showing of the denial of a federal right, and he
is not entitled to a certificate of appealability under 28 U.S.C. § 2253.

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In this case, because Banks is not entitled to relief on his
claims, the Court determines that any appeal would not be taken in
good faith. It is, therefore, CERTIFIED, pursuant to Fed. R. App.
P. 24(a), that any appeal in this matter would not be taken in good
faith. Leave to appeal in forma pauperis is DENIED. Should Banks
file a notice of appeal, he must also pay the full $455 appellate
filing fee or file a motion to proceed in forma pauperis and
supporting affidavit in the United States Court of Appeals for the
Sixth Circuit within thirty (30) days.
V.

CONCLUSION
For the foregoing reasons, Banks’ Petition is DENIED.
SO ORDERED this 11th day of July, 2013.

S/ Jon P. McCalla
JON P. McCALLA
CHIEF U.S. DISTRICT JUDGE

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