Davis v. Wiley ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
May 21, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
MELVIN LEE DAVIS,
Petitioner-Appellant, No. 10-1040
v. (D. of Colo.)
R. WILEY, Warden, (D.C. No. 07-cv-56-MSK-BNB)
Respondent-Appellee.
ORDER AND JUDGMENT *
Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges. **
Melvin Lee Davis, a federal prisoner at the United States penitentiary in
Florence, Colorado, proceeding pro se, appeals the dismissal of his 28 U.S.C.
§ 2241 habeas petition. Having jurisdiction pursuant to 28 U.S.C. § 1291, we
AFFIRM the district court’s decision.
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
I. Background
Davis has a lengthy and complex criminal history that spans three decades
and involves federal and state sentences in Georgia, Virginia, Connecticut,
Oregon, and South Carolina. He received five sentences in the 1970s, served
some time, escaped twice, was paroled, violated the terms of his parole, received
two additional sentences in the 1980s, and two more in the 1990s.
Davis filed this petition in February, 2007, and raised three claims. He
contended before the district court that 1) the Commonwealth of Virginia lodged
an illegal detainer against him in connection with a Virginia state sentence; 2) the
United States Parole Commission (USPC) erred when it took away his parole
“street time”; and 3) the Bureau of Prisons (BOP) miscalculated his release date,
improperly changing it from July, 2005, to November, 2017. Davis also argued in
a supplemental motion that prison officials had improperly withheld from him
mailings from the United States Attorney’s office, thus depriving him of advance
notice of documents he could have presented at an evidentiary hearing the
magistrate judge held to determine Davis’s proper release date. The district court
dismissed all of Davis’s claims.
II. Discussion
We review de novo a district court’s denial of a 28 U.S.C. § 2241 petition.
Bledsoe v. United States, 384 F.3d 1232, 1235 (10th Cir. 2004). We also review
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Davis’s pleadings liberally because he is proceeding pro se. Fed. Ex. Corp. v.
Holowecki, 552 U.S. 389, 402 (2008).
A.
As an initial matter, Davis’s brief on appeal does little more than repeat his
contention that prison officials wrongfully withheld from him a “Presentence
Investigation Report and Judgement and Commitment paperwork” that the United
States Attorney’s Office had mailed him. Davis argues the prison officials
deprived him of the opportunity to review those documents before the magistrate
judge’s evidentiary hearing. Though his brief is not entirely clear, Davis seems to
argue that had he been able to review the documents and submit them to the court,
the magistrate judge would have calculated an earlier release date. The district
court dismissed Davis’s argument as moot, explaining that the “material
referenced by the Petitioner was considered by the Magistrate Judge,
notwithstanding the fact that the Petitioner had not had an opportunity to review it
prior to the evidentiary hearing.” R. Vol. 1, Doc. 68 at 1–2. After a thorough
review of the record, we agree with the district court’s conclusion. The
magistrate judge thoroughly considered every document Davis would have
proffered had he been able to review them beforehand. R. Vol. 1, Doc. 58 at 11;
see also Supp. R. Vol. 1, Doc. 79 at 12, 23, 26, 27. Thus, Davis’s argument is
moot.
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B.
In the district court, Davis also sought habeas relief based on three other
claims, all of which the district court rejected. He argued that 1) the
Commonwealth of Virginia had lodged an illegal detainer against him; 2) the
USPC erred when it took away his parole “street time”; and 3) the BOP
miscalculated his release date, improperly changing it from July, 2005, to
November, 2017. Because Davis does not raise these issues on appeal, we deem
him to have waived them. Krastev v. INS, 292 F.3d 1268, 1280 (10th Cir. 2002)
(“Issues not raised on appeal are deemed to be waived.”). Nevertheless, even if
he had not waived them, we agree with the district court that they lack merit.
First, in 2005, the Commonwealth of Virginia notified the BOP that Davis
still had a Virginia sentence he needed to complete and that once Davis completed
his federal sentences in Colorado, Virginia intended to extradite him to serve the
remainder of his state sentence. Davis contended before the district court that he
had served his Virginia sentence concurrently with his federal sentence and
therefore had no time remaining on his Virginia sentence. The district court
denied habeas relief without considering the merits because Davis had failed to
exhaust all available state remedies before filing his application for a writ of
habeas corpus under 28 U.S.C. § 2241. See Montez v. McKinna, 208 F.3d 862,
866 (10th Cir. 2000).
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We agree with the district court. Whether Davis should receive credit
against his Virginia sentence for time served for his federal sentence is a question
of state law. Crowley v. Graham, No. 98-3293, 1999 WL 72123 at *1 (10th Cir.
Feb. 16, 1999) (unpublished). Under Virginia law, Davis may challenge whatever
sentence the Commonwealth of Virginia claims he must still serve. Va. Code
§ 8.01-654. It appears Davis has not done so. Because he has failed to exhaust
this state remedy, the district court correctly ruled he may not bring a federal
habeas corpus petition. The district court is also correct that because Davis is
challenging a state court detainer, his notice of appeal constitutes an application
for COA. For the foregoing reasons, we conclude Davis has not “made a
substantial showing of the denial of a constitutional right,” and we thus deny his
request for a COA on this issue. 28 U.S.C. § 2253(c)(2).
Second, Davis further claimed before the district court that the USPC erred
when it took away his parole “street time.” The district court correctly dismissed
the claim because the USPC is not a party to this action, and the BOP does not
have authority to remedy decisions made by the USPC.
Finally, Davis contended the BOP miscalculated his release date,
improperly changing it from July, 2005, to November, 2017. After reviewing the
district court’s analysis, it does appear it may have made a 45-day error in its
calculations. The district court, adopting the magistrate judge’s analysis, noted
that Davis had received a 5-year sentence in the District of Georgia, which he
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began serving on June 2, 1972. He served just 45 days of that sentence before
escaping. He was recaptured, and the Eastern District of Virginia later sentenced
him to a 10-year sentence that was to run concurrently with his previous 5-year
sentence. The magistrate judge, when calculating the number of days remaining
on Davis’s sentence at that point, added the 45 days Davis had already served to
the 10-year sentence. While this appears to be an error, it is not one that affects
Davis’s claim in this case. His release date would still be at some point in 2017,
and as that year approaches, Davis may request a recalculation of his release date
through the proper administrative channels.
III. Conclusion
For the foregoing reasons, we AFFIRM the district court’s order, DENY his
request for a COA, and DISMISS Davis’s appeal. We GRANT Davis’s motion to
proceed in forma pauperis.
ENTERED FOR THE COURT
Timothy M. Tymkovich
Circuit Judge
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