                                                                         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         This order and judgment is not binding precedent except under the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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