United States District Court, E.D. Tennessee, Knoxville
Jordan United States District Judge
pro se, Brandy Shareece Sanders Walker
(“Petitioner”) filed this petition for a writ of
habeas corpus under 28 U.S.C. § 2244 [Doc. 2]. Before
the Court is Respondent's Motion to Dismiss based on
Petitioner's failure to exhaust her state remedies and,
alternatively, on her failure to present meritorious claims
[Doc. 9]. Respondent filed a supporting brief and copies of
documents relevant to the exhaustion issue [Doc. 10,
Attachments 10-1]. Petitioner did not reply to
Respondent's Motion and the time for doing so has now
passed. E.D. Tenn. L.R. 7.1, 7.2. For the reasons below,
Petitioner's § 2244 petition will be
who is in the custody of the Tennessee Department of
Correction (“TDOC”), asserts that on April 10,
2012, in Knox County Case Number 95846, she was sentenced to
serve six years' state probation [Doc. 2 at 5]. Some two
months later, Petitioner was arrested in connection with
Anderson County Case Number B2C00447 and, upon her
conviction, she was sentenced to two years and six months
confinement, to be served concurrently with the Knox County
six-year sentence [Id.]. The Anderson County
corrected judgment, a copy of which Petitioner attached to
her § 2244 petition, reflects that the judgment was
entered on January 17, 2014, that the sentence was set
concurrent with “Knox Co. case # 95846, ” and
that Petitioner's sentence was to be credited with
pretrial jail credits from June 26, 2012, to January 17, 2014
[Id. at 8]. Petitioner maintains that she is due 560
days of pretrial jail credits on her sentence, but that TDOC
has failed to apply the jail credits to her overall sentence
[Id.]. Petitioner would have the Court declare that
her sentence has been miscalculated and order TDOC to correct
her time calculation [Id. at 6].
corpus relief will not be granted unless a petitioner has
exhausted her 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
petitioner has not “exhausted the remedies available in
the courts of the State, within the meaning of this section,
if [s]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 also 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).
prisoner in the custody of TDOC who has been denied pretrial
jail credits may seek such credits from TDOC, by means of a
declaratory order, obtained through the Uniform
Administrative Procedures Act, see Tenn. Code Ann.
§ 4-5-223; see also Howard v. Tenn. Dep't of
Corr., No. M201600337COAR3CV, 2016 WL 7048838, at *2
(Tenn. Ct. App. Dec. 5, 2016); and if dissatisfied with the
result, she may seek review of that decision in the Chancery
Court of Davidson County. See Tenn. Code Ann. §
4-5-322(b)(1); Howard, 2017 WL 7048838, at *2. If
she is unable to secure relief in the state chancery court,
she may file an appeal to the Tennessee Court of Appeals.
See Tenn. Code Ann. § 4-5-323; Howard,
2017 WL 7048838, at *3.
Petitioner does not contend, and the record does not show,
that she submitted a petition for a declaratory order to
TDOC; that the petition was denied; that she then pursued
review of the denial of the declaratory order to the Davidson
County Chancery Court; that she was unsuccessful in the state
court of equity; and that she, thereafter, sought a
declaratory judgment in the Tennessee Court of Appeals.
since Petitioner has failed to bear her burden of showing
exhaustion of such state remedies as may be available with
respect to her claims, Rust, 17 F.3d at 160, she may
not pursue the pretrial jail credit claims, at this time, in
a federal habeas corpus action.
Petitioner had exhausted her state remedies before she filed
her § 2254 petition, this Court's habeas corpus
jurisdiction extends only to cases where a state prisoner
contends that she is in custody in violation of her
constitutional rights. 28 U.S.C. § 2254(a). Pretrial
jail credits are mandated by a state statute. See
Tenn. Code Ann § 40-23-101(c): see also Bonner v.
Tenn. Dept. of Corr., 84 S.W.3d 576, 581-82 (Tenn. Ct.
App. 2001) (observing that TDOC “is required to
calculate prison sentences in accordance with the sentencing
court's judgment order and with applicable sentencing
statutes”); State v. Henry, 946 S.W.2d 833,
834 (Tenn. Crim. App. 1997) (noting that a defendant's
sentence must be credited with time served in jail pending
arraignment and trial as well as time subsequent to any
conviction arising out of the original offense).
sole issue here is whether TDOC has refused to afford
Petitioner the amount of pretrial jail credits that the trial
court ordered. However, “[t]he actual computation of a
prison term involves a matter of state law that is not
cognizable under 28 U.S.C. § 2245.” Kipen v.
Renico, 65 F. App'x 958, 959 (6th Cir. 2003) (citing
Estelle v. McGuire, 502 U.S. 62, 68 (1991)); see
also Lee v. Ga. Dep't of Corr., No.
1:16-CV-0982-TWT-JFK, 2016 WL 3023883, at *1 (N.D.Ga. Apr.
22, 2016) (“Determinations by state prison authorities
and courts in computing the time to be served under a state
sentence present no federal question, constitutional or
otherwise, and are not subject to review by federal habeas
corpus proceedings.”) (internal quotation marks
omitted), report and recommendation adopted, No.
1:16-CV-982-TWT, 2016 WL 2997949 (N.D.Ga. May 25, 2016);
Armstrong v. Salinas, No. CIV.A. 6:13-179-KKC, 2014
WL 340399, at *7 (E.D. Ky. Jan. 30, 2014) (ruling that
“claims challenging the amount of jail credit applied
(or not applied) to state sentences under state law . . . are
a matter of state law and are not cognizable on federal
habeas review”) (citing to Howard v. White, 76
F. App'x 52, 53 (6th Cir. 2003)).
Supreme Court has explained, a federal court is not free to
issue a writ of habeas corpus “on the basis of a
perceived error of state law.” Pulley v.
Harris, 465 U.S. 37, 41 (1984). Thus, because
Petitioner's claims do not allege a violation of federal
constitutional law, they provide no recognizable basis for
habeas corpus relief. 28 U.S.C. § 2254(a) (habeas corpus
relief is appropriate only for constitutional violations);
see Swarthout v. Cooke, 562 U.S. 216, 219 (2011)
(finding that claims which allege a state law error or an
incorrect application of state law do not present cognizable
issues for federal habeas review).
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 they find debatable or wrong the
Court's conclusion that the claims are not cognizable
federal habeas corpus claims. 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).
addition to the above, this Court has carefully reviewed this
case pursuant to 28 U.S.C. § 1915(a) and will
CERTIFY that any appeal from this action
would not be taken in good faith. Hence, should Petitioner
file a notice of appeal, she will be DENIED
leave to proceed in forma pauperis on appeal.
See Rule 24 of the Federal Rules of Appellate