1 

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

CHRISTIAN N. DAVIS, § 

#13608-045, § 

Petitioner, § 

 § 

v. § No. 3:22-cv-01410-L (BT)

 § 

UNITED STATES OF AMERICA, § 

Respondent. § 

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Christian N. Davis, a prisoner at FCI Seagoville, filed a pro se petition

for a writ of habeas corpus under 28 U.S.C. § 2241. As explained below, Davis 

is not entitled to the relief he seeks. Therefore, the Court should dismiss or 

deny his petition.

Background

In 1993, Davis—who at the time was an active-duty member of the 

United States Army—was convicted at a general court-martial of numerous 

criminal offenses.1 App. 6-7 (ECF No. 13). He was sentenced to life in prison, 

with the possibility of parole, and dishonorably discharged. Id. 7. Davis later 

1 In May 1987, Davis set fire to his mobile home in Fort Polk, Louisiana, 

while his wife was inside. App. 10 (ECF No. 13). His wife survived the fire. 

Id. However, in 1991, Davis conspired with a woman with whom he was in 

an adulterous relationship to shoot his wife and make it look like a suicide. 

Id. Davis’s wife was pregnant at the time of her death. Id. Following his 

court-martial, Davis was convicted of attempted premeditated murder, 

conspiracy to commit murder, premeditated murder, arson, and adultery, 

among other offenses. Id. 6-7, 9.

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applied for clemency with the Army Clemency and Parole Board, but his 

application was denied. Id. at 21-22. 

In 2002, the United States Parole Commission (USPC) gave Davis a 

“presumptive parole date” of May 21, 2016.2 Id. at 23-24. But in September 

2015, the USPC reopened the parole decision and conducted a “special 

reconsideration hearing to consider new adverse information.” Id. at 25; see 

also 28 C.F.R. § 2.28(f). Thereafter, the USPC rescinded Davis’s

presumptive parole date and ordered him to serve the remainder of his life 

sentence while having his parole reviewed every 15 years, see 28 C.F.R. § 

2.14(c), unless he had served 30 years of his life sentence prior to his next 

15-year reconsideration hearing, see 18 U.S.C. § 4206(d) (repealed).3 App. 

2 The Uniform Code of Military Justice (UCMJ) provides that “a sentence of 

confinement adjudged by a court-martial . . . may be carried into execution 

by confinement . . . in any penal or correctional institution under the control 

of the United States.” 10 U.S.C. § 858(a). The UCMJ further provides that 

prisoners who are transferred to federal Bureau of Prisons (BOP) facilities 

must be treated the same as non-military prisoners incarcerated in the same 

facility. Id. Thus, military prisoners confined in federal prison facilities—like 

Davis—are subject to BOP rules, including the rules concerning parole 

consideration. See Artis v. U.S. Dep’t of Justice, 166 F. Supp. 2d 126, 130 (D.

N.J. 2001). Although the Sentencing Reform Act of 1984, Pub. L. No. 98–

473, 98 Stat. 1987 (Oct. 12, 1984), abolished parole and replaced it with 

supervised release, prisoners who committed their offense of conviction

prior to November 1, 1987, remain eligible for parole under the preSentencing Reform Act system. Terrell v. United States, 564 F.3d 442, 444 

(6th Cir. 2009). Davis committed arson and attempted premeditated 

murder in May 1987. App. 10 (ECF No. 13). 3 Davis would also remain eligible for a statutory interim hearing every 24 

months to determine whether there had been a substantial change in his 

record that would advance his 15-year reconsideration hearing. See 18 U.S.C. 

§ 4208(h)(2) (repealed).

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26 (ECF No. 13). In its decision, the USPC explained that “[the] new 

information [was] significant because it not only directly contradict[ed]

[Davis’s] claim of innocence, but also demonstrate[d] [his] lack of remorse, 

lack of empathy for the victims of [his] crimes, and [his] lack of acceptance 

of responsibility for [his] actions.” Id. at 26-27. Davis administratively 

appealed the USPC’s decision to rescind his presumptive parole date, but the 

National Appeals Board affirmed the USPC’s decision. Id. at 32-33. 

In September 2021, Davis applied for his latest parole hearing with 

the USPC. Id. at 34-35. The USPC conducted the hearing on February 4, 

2022, pursuant to 18 U.S.C. § 4206(d) because Davis had served almost 30

years of his life sentence. Id. at 58-59; see also Pet. 56-57 (ECF No. 3); 18 

U.S.C. § 4206(d) (repealed). Following the hearing, the USPC denied Davis’s

request for parole. App. 56-57 (ECF No. 13). Davis administratively appealed 

the USPC’s decision. Id. at 58-84. The USPC’s National Appeals Board 

denied his appeal. Id. at 80-82. 

Davis then commenced this action asking for “compassionate release” 

under 18 U.S.C. § 3582(c)(1)(A)(i), 28 U.S.C. § 1651, and 28 U.S.C. § 2241. 

Pet. (ECF No. 3). In his filings, he argues that he has been “unjustly” denied 

parole and he is entitled to release because (i) he has engaged in many 

rehabilitation efforts, (ii) he suffers from health issues; (iii) his convictions 

were based solely on circumstantial evidence; and (iv) he may be innocent 

of the criminal offenses of which he was convicted. Id. at 2, 4, 8-11, 12-13, 

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16-41, 53-55. Davis further argues that if he is released, he plans to live a 

quiet life with his brother in Superior, Montana. Id. at 11, 52 (including a 

letter from Davis’s brother regarding the plan for Davis to be released to his 

home).

Legal Standards

A federal district court has jurisdiction under 28 U.S.C. § 2241 over a 

habeas application from a person held in custody under a military 

conviction. Fletcher v. Outlaw, 578 F.3d 274, 276 (5th Cir. 2009) (citing 

Burns v. Wilson, 346 U.S. 137, 139 (1953)). But in a military habeas corpus 

determination, the scope of matters addressed by the federal district court 

is narrow. Burns, 346 U.S. at 139; Fletcher, 578 F.3d at 276. The court’s 

review is limited to determining whether the military court gave full and fair 

consideration to the claims, and the court is precluded from simply 

reevaluating the evidence before the military court. Burns, 346 U.S. at 142, 

144; see also Calley v. Callaway, 519 F.2d 184, 199 (5th Cir. 1975). In the 

Fifth Circuit, the review of a military conviction is proper when: (1) the claim 

is of “substantial constitutional dimension;” (2) the issue is legal rather than 

one involving a disputed fact determined by a military tribunal; (3) there are 

no military considerations that warrant different treatment of constitutional 

claims; and (4) the military court failed to give proper consideration to the 

issues involved, or it failed to apply the proper legal standards. See Calley, 

519 F.2d at 199-203. A petitioner bears the burden of demonstrating that the 

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military review was legally inadequate to resolve his claims. Fletcher, 578 

F.3d at 277 (citing Burns, 346 U.S. at 146). When a petitioner convicted in a 

military court raises a habeas claim that was not raised at trial or on appeal, 

he must show cause for his failure to raise the claim earlier and prejudice 

from the error to avoid procedural default of the claim. Lips v. 

Commandant, U.S. Disciplinary Barracks, 997 F.2d 808, 812 (10th 

Cir.1993) (citing Murray v. Carrier, 477 U.S. 478, 491 (1986)); see also

Fletcher, 578 F.3d at 276-77; Ruiz v. Warden, FCI Texarkana, 2023 WL 

2941477, at *7 (E.D. Tex. Feb. 14, 2023). 

Analysis

A. Davis is not entitled to compassionate release. 

1. The Court lacks jurisdiction over Davis’s claims for 

compassionate release. 

Davis seeks a reduction in his sentence and moves for compassionate 

release under § 3582(c)(1)(A)(i). Pet. 1 (ECF No. 3). However, only the 

sentencing court has jurisdiction to consider a motion for compassionate 

release. 18 U.S.C. § 3582(c)(1)(A); see also Himmel v. Upton, 2019 WL 

1112923, at *2 n.6 (N.D. Tex. Mar. 11, 2019) (“[A]ny motion for

compassionate release under the newly amended provision of 18 U.S.C. § 

3582(c)(1)(A) should be filed in the sentencing court.”). Any district court 

other than the sentencing court lacks jurisdiction to consider the 

compassionate release motion. Landazuri v. Hall, 423 F. App’x 475, 476 

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(5th Cir. 2011) (per curiam) (“Because [the petitioner] did not file this [§ 

3582(c)] challenge to his sentence in the court in which he was sentenced, 

the district court ruled correctly that it lacked jurisdiction to consider it.”).

Davis is in custody pursuant to a conviction in an Army general courtmartial. Thus, there is no still-existent sentencing court to address Davis’s 

motion for compassionate release. See Prost v. Anderson, 636 F.3d 578, 588 

(10th Cir. 2011) (recognizing the “evanescent nature of court martial 

proceedings”); see also In re Kawai, 2022 WL 1668374, at *3 (A.F. Ct. Crim. 

App. May 25, 2022) (recognizing “[g]eneral courts-martial are ad hoc

proceedings”) (quoting Witham v. United States, 355 F.3d 501, 505 (6th Cir. 

2004)). Rather, “[g]eneral courts-martial are ad hoc proceedings, and they 

dissolve after the purpose for which they were convened has ended.”

Witham, 355 F.3d at 505.

Furthermore, military law “is a jurisprudence which exists separate 

and apart from the law which governs in our federal judicial establishment.” 

Schlesinger v. Councilman, 420 U.S. 738, 746 (1975) (citing Burns, 346 U.S. 

at 140; Parker v. Levy, 417 U.S. 733, 744 (1974)). A federal court lacks the 

authority to exercise “appellate jurisdiction to supervise the administration 

of criminal justice in the military.” See id.

To the extent Davis seeks a reduction in his sentence to time served, 

his request is not cognizable in a habeas petition. Rather, his claims are more 

properly addressed by the Army Clemency and Parole Board.

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Also, Davis is not serving a federal criminal sentence. Instead, Davis 

is serving a sentence under the UCMJ. Section 3582 addresses the 

“[i]mposition of a sentence of imprisonment,” but it does not apply to a 

sentence imposed under the UCMJ. See 18 U.S.C. § 3582(c) (providing 

“[t]he court may not modify a term of imprisonment once it has been 

imposed,” making it clear the term “court” refers to the federal sentencing 

court, not a habeas court); see also id. § 3551(a) (an individual convicted of 

a crime under any federal statute must be sentenced in accordance with Title 

18, Chapter 227, unless the statute specifically provides that Chapter 227 

does not apply, or the law is an Act of Congress and is applicable exclusively 

in the District of Columbia or the UCMJ). Therefore, to the extent that Davis 

is seeking compassionate release under § 3582(c)(1)(A)(i), his petition 

should be dismissed for lack of jurisdiction. 

2. In the alternative, Davis has failed to demonstrate “extraordinary 

and compelling reasons” to warrant compassionate release. 

Davis asserts that he is seeking “the same consideration and 

compassionate release that was granted” to three other inmates. Pet. 5-6 

(ECF No. 3). Davis states that he filed a request for compassionate release 

with the warden at FCI Seagoville, but he did not receive a response within 

30 days. Id. at 2; see also Pet. 15 (ECF No. 3) (request to the warden for 

compassionate release). Davis argues that he is entitled to compassionate 

release under § 3582(c)(1)(A)(i) based on the following considerations: (1) 

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he is sixty-one years old; (2) he is an insulin-dependent diabetic; (3) he has 

hypertension; (4) he is deemed obese; (5) he has disorders of the arteries 

and arterioles; (6) he suffers from neuropathy and high cholesterol; and (7) 

he has engaged in numerous rehabilitative efforts. Pet. 8-11 (ECF No. 3). 

Davis contends that his underlying health conditions make him more 

susceptible to getting COVID-19 while incarcerated. Id. at 9. He concludes 

that he is being denied proper medical treatment at FCI Seagoville, and this 

is yet another basis for the Court to grant his motion for compassionate 

release. Id. at 9 (citing United States v. DeMartino, Case No. 1:03cr265 

(E.D.N.Y. 2022) (the court granted the compassionate release motion where 

the defendant was not receiving the proper ophthalmology care or surgery 

to prevent the loss of his eyesight)). 

 Under § 3582(c)(1)(A), as amended by the First Step Act (FSA), “[a] 

court, on a motion by the [Bureau of Prisons (BOP)] or by the defendant 

after exhausting all BOP remedies, may reduce or modify a term of 

imprisonment, probation, or supervised release after considering the factors 

of 18 U.S.C. § 3553(a), if ‘extraordinary and compelling reasons warrant 

such a reduction.’” United States v. Chambliss, 948 F.3d 691, 692-93 (5th 

Cir. 2020) (quoting § 3582(c)(1)(A)(i)); see also Chambliss, 948 F.3d at 693 

n.1. But “[t]here is little developed guidance on what constitutes 

extraordinary and compelling reasons for a sentence reduction because 

neither § 3582 nor the Guidelines fully define or limit those reasons.” United

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States v. Rodriguez, 27 F.4th 1097, 1099-1100 (5th Cir. 2022) (citing United 

States v. Shkambi, 993 F.3d 388, 391-92 (5th Cir. 2021)).

In the commentary to U.S.S.G. § 1B1.13, the Sentencing Commission 

“‘articulate[s] four categories of ‘extraordinary and compelling reasons’ that 

could warrant a sentence reduction: (A) medical conditions of the 

defendant; (B) age of the defendant; (C) family circumstances; and (D) other 

reasons identified by the [BOP’s] Director.” United States v. Jackson, 27 

F.4th 1088, 1090 (5th Cir. 2022) (quoting Shkambi, 993 F.3d at 391).

“[Section] 1B1.13 is not an ‘applicable policy statement’ to compassionate 

release motions filed by prisoners, [so] ‘neither the policy statement nor the 

commentary to it binds a district court addressing a prisoner’s own motion 

under § 3582.’” United States v. Cooper, 996 F.3d 283, 288 (5th Cir. 2021)

(quoting Shkambi, 993 F.3d at 392-93). But “[§] 1B1.13 may ‘inform [ ]’ the 

district court’s analysis.” Jackson, 27 F.4th at 1090 (quoting United States 

v. Thompson, 984 F.3d 431, 433 (5th Cir. 2021)).

The fear of COVID-19, standing alone, does not provide an 

extraordinary and compelling reason to grant compassionate release. See 

Thompson, 984 F.3d at 435 (“Fear of COVID doesn’t automatically entitle a 

petitioner to release.”); see also United States v. Raia, 954 F.3d 594, 597 (3d 

Cir. 2020) (“But the mere existence of COVID-19 in society and the 

possibility that it may spread to a particular prison alone cannot 

independently justify compassionate release, especially considering BOP’s 

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statutory role, and its extensive and professional efforts to curtail the virus’s 

spread.”). But when an inmate has a medical condition that has been 

identified by the Centers for Disease Control and Prevention (CDC) as 

elevating his risk for becoming seriously ill from COVID-19, courts will 

consider that condition when deciding whether to grant a sentence 

reduction. On May 11, 2023, the CDC provided a list of risk factors that “can 

make you more likely to get sick if you get COVID-19.” See Factors That 

Affect Your Risk of Getting Very Sick from COVID-19, CDC, 

https://www.cdc.gov/coronavirus/2019-ncov/your-health/risks-gettingvery-sick.html (last visited Aug. 16, 2023).

“Now that COVID-19 vaccinations are being administered throughout 

the [BOP], compassionate release motions generally lack merit.” United 

States v. Reed, 2021 WL 2681498, at *4 (E.D. Pa. June 30, 2021). And 

“[c]ourts have held that, once vaccinated, the efficacy of the COVID-19 

vaccines preclude the argument that a prisoner’s susceptibility to the disease 

is extraordinary and compelling for purposes of § 3582(c)(1)(A).” United 

States v. Gibson, 2021 WL 3164176, at *2 (E.D. La. July 27, 2021). When an

inmate suffers from a serious health condition, the availability of COVID-19 

vaccines and treatment options reduce the risk caused by the serious health 

condition. See United States v. Diaz, 2023 WL 1879404, at *2 (5th Cir. Feb. 

10, 2023) (per curiam) (“[W]e agree with the district court that the 

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availability of COVID-19 vaccines and treatment options decreases the risks 

associated with [the inmate-defendant’s] condition.”). 

Even if Davis could demonstrate that his motion for compassionate 

release was appropriately filed under § 3582(c)(1)(A)(i), the motion fails on 

the merits for several reasons. First, Davis’s COVID-19 related concerns fail 

to rise to the level of “extraordinary and compelling reasons” under § 

3582(c)(1)(A)(i). Although not binding in the Fifth Circuit, the commentary 

to § 1B1.13 lists four categories of “extraordinary and compelling reasons”: 

(A) the defendant’s medical conditions; (B) the defendant’s age; (C) the 

defendant’s family circumstances; and (D) any other reasons as determined 

by the BOP director. U.S.S.G § 1B1.13 cmt. n.1 (A)-(D); Jackson, 27 F.4th at 

1090 (citing Shkambi, 993 F.3d at 391); see also BOP Program Statement 

5050.50 ¶¶ 3-6, available at

https://www.bop.gov/policy/progstat/5050_050_EN.pdf (a BOP 

regulation stating its own considerations of requests for compassionate 

release which are limited to those set forth by the Sentencing Commission:

serious medical conditions, advanced age, and family circumstances). A 

medical condition is deemed sufficiently serious to warrant compassionate 

release where the defendant either has a terminal illness or a health 

condition that substantially diminishes the ability of the defendant to 

provide self-care. Thompson, 984 F.3d at 433 (citing U.S.S.G. § 1B1.13 cmt. 

n.1(A)). 

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Here, Davis has provided a list of his health problems, as outlined by 

prison personnel. Reply 14-18 (ECF No. 14). He avers that he is an insulindependent diabetic, and the condition makes him more vulnerable to 

become seriously ill if he should contract COVID-19. Pet. 9 (ECF No. 3); see 

also Reply 6 (ECF No. 14). Davis also alleges that the BOP cannot protect 

him from COVID-19, as he has been diagnosed with COVID-19 on two 

occasions while incarcerated, and the second time he contracted COVID-19, 

it was “worse” than the first time. Pet. 9 (ECF No. 3). Davis has also provided 

an article from the Wall Street Journal entitled “Covid Reinfections Pose 

Some New Medical Risks.” Id. at 18. But Davis fails to provide adequate 

documentation to show he has insulin-dependent diabetes that is 

sufficiently severe. See 18 U.S.C. § 3582(c)(1)(A)(i); see also United States v. 

Nelson, 2023 WL 4566254, at *2-*3 (N.D. Tex. July 17, 2023) (denying a 

motion for compassionate release where the defendant failed to provide the 

court with medical records to substantiate his medical conditions beyond a 

bare diagnosis); United States v. Pearce, 2022 WL 992738, at *3 (N.D. Tex. 

Apr. 1, 2022) (same); United States v. Delgado, 2020 WL 2542624, at *3 

(N.D. Tex. May 19, 2020) (same). And Davis does not refer to any specific, 

ongoing health issues he suffers from due to his insulin-dependent diabetes. 

Davis’s list of medical problems is not specific enough to constitute 

documentation showing his medical problems are sufficiently severe to rise 

to the level of “extraordinary and compelling reasons.” See 18 U.S.C. § 

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3582(c)(1)(A)(i). And the Wall Street Journal article Davis has provided is 

neither relevant nor compelling information. 

But even if Davis had shown “extraordinary and compelling reasons” 

under § 3582(c)(1)(A)(i), the § 3553(a) factors do not support a decision to 

reduce his sentence. When the court finds “extraordinary and compelling 

reasons” under § 3582(c)(1)(A)(i), those reasons must outweigh the §

3553(a) factors to warrant a sentence reduction. 18 U.S.C. § 3582(c)(1)(A); 

see also United States v. Sanchez-Chavez, 2021 WL 5804279, at *3 (E.D. 

Tex. Dec. 7, 2021). 

Under § 3553(a)(1), the Court considers “the nature and 

circumstances of the offense[s] and the history and characteristics of the 

defendant.” With respect to this factor, Davis argues: (1) he is not a threat to 

society; (2) he is not a threat to another person; or (3) he does not pose a 

risk for recidivism. Reply 8 (ECF No. 14). But Davis was court-martialed for 

numerous serious criminal offenses, including the premeditated murder of 

his pregnant wife, and he was sentenced to life imprisonment. See United 

States v. Martinez, 832 F. App’x 906, 906 (5th Cir. 2021) (per curiam) 

(finding it was “not unreasonable for [a] court to place greater weight on the 

seriousness of [the] offense, including the fact that a dangerous weapon was 

involved in the criminal activity” when it denied compassionate release); see 

also United States v. Brown, 829 F. App’x 695, 696 (5th Cir. 2020) (finding

“[i]t was not unreasonable for the district court to afford greater weight to 

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[the defendant’s] history and characteristics, the amount of time served on 

his sentence, and the need to protect the public from further crimes by [the 

defendant] than the weight it placed upon his medical issues, the impact of 

the pandemic at [the prison] and the BOP’s response to the pandemic”). 

Moreover, while incarcerated, Davis has sustained several disciplinary 

infractions, such as a finding by the Discipline and Adjustment Board that 

he stole property in January 1997 while at the U.S. Disciplinary Barracks. 

App. 58 (ECF No. 13). And following a hearing on February 4, 2022, the 

USPC concluded that Davis had “seriously violated the rules of [FCI 

Seagoville][,] and there [was] a reasonable possibility [he] [would] commit 

[another] Federal, State, or local crime if released.” Id. (emphasis added). 

During Davis’s incarceration, on at least three occasions, the USPC 

considered his requests for parole, and each time the USPC denied parole. 

See App. 58-59 (ECF No. 13) (Feb. 14, 2022 decision); App. 29-30 (ECF No. 

13) (Aug. 9, 2016 decision); App. 26-27 (ECF No. 13) (May 10, 2016

decision). For these reasons, § 3553(a)(1) weighs against a sentence 

reduction in Davis’s case.

Next, the Court considers “the need for the sentence imposed” “to 

reflect the seriousness of the offense, to promote respect for the law, and to 

provide just punishment for the offense.” 18 U.S.C. § 3553(a)(2)(A). Davis 

was sentenced to life imprisonment after he was found guilty of attempted 

premeditated murder, conspiracy to commit murder, premeditated murder, 

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arson, adultery, false statement, fraudulent enlistment, and false official 

record. App. 6-7, 9 (ECF No. 13). If the Court reduced Davis’s sentence under 

§ 3582(c)(1)(A)(i), his sentence would fail to reflect the seriousness of the 

criminal offenses for which he was convicted, promote respect for the law,

and provide a just punishment for his numerous offenses. 

Under § 3553(a)(2)(B), the Court considers “the need for the sentence 

imposed” “to afford adequate deterrence to criminal conduct.” The sentence 

Davis serves for his gravely serious crimes needs to be sufficiently long to 

deter him from committing additional crimes in the future. If the Court 

reduced Davis’s sentence now, it might not be sufficient to serve as a 

deterrence to him from committing future crimes.

Finally, the Court considers “the need for the sentence imposed” “to 

protect the public from further crimes of the defendant.” 18 U.S.C. § 

3553(a)(2)(C). Considering the numerous crimes Davis committed, and the 

fact that several of the criminal offenses were gravely serious offenses, the 

public needs to be protected from him. 

In sum, the § 3553(a) factors weigh in favor of denying Davis’s motion 

for compassionate release. See United States v. Samak, 832 F. App’x 330, 

331 (5th Cir. 2020) (per curiam) (affirming the district court and finding the 

defendant failed to demonstrate the district court abused its discretion when 

it denied his § 3582(c)(1)(A) motion after weighing the § 3553(a) factors); 

see also United States v. Faulkner, 2021 WL 5746529, at *3 (N.D. Tex. Dec. 

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2, 2021) (the district court weighed the relevant § 3553((a) factors and 

concluded the defendant was not entitled to a sentence reduction under § 

3582(c)(1)(A)) (citing Samak, 832 F. App’x at 331). 

For these reasons, the Court should deny Davis’s request for 

compassionate release under § 3582(c)(1)(A)(i). 

B. To the extent Davis challenges the denial of parole through a habeas 

petition, his claim fails. 

Next, Davis argues, under § 2241, that he has been “unjustly” denied 

parole. Pet. 12-13 (ECF No. 3); see also Reply 11-13 (ECF No. 14).

Specifically, Davis contends that in 2002, the USPC granted him a 

presumptive parole date of May 21, 2016, but in a Notice of Action issued on 

May 10, 2016, the USPC rescinded the presumptive parole date. Pet. 12 (ECF 

No. 3). But the fact that Davis received a presumptive parole date does not 

entitle him to relief. A presumptive parole date is just that—not final, but 

rather contingent on other events taking place.

Under the pre-Sentencing Reform Act system, a prisoner receives an 

initial parole hearing within 120 days after his arrival at a federal institution, 

or as soon as practical, but when the prisoner has a minimum term of parole 

ineligibility of ten years or more, the initial hearing will be held nine months 

prior to the completion of the minimum term or as soon as practical. 28 

C.F.R. § 2.12(a). After the initial parole hearing, the USPC will (1) set an 

effective parole date, (2) set a “presumptive release date,” or (3) continue the 

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prisoner to a fifteen-year reconsideration hearing. Id. at § 2.12(b); see also

28 C.F.R. § 2.14(c) (“A fifteen year reconsideration hearing shall be a full 

reassessment of the case pursuant to the procedures at [28 C.F.R.] § 2.13.”).

After the initial parole hearing, a prisoner is entitled to periodic interim 

hearings. 28 C.F.R. § 2.14(a). The purpose of the interim hearings is to 

consider significant developments or changes in the prisoner’s status that 

may have taken place after the initial hearing. Id. At the periodic interim 

hearings, the USPC can order no change in the prior decision, advance a 

presumptive release date, retard or rescind the presumptive parole date, or 

advance the date of the fifteen-year reconsideration hearing. See id. § 

2.14(a)(2). A prisoner may appeal a USPC decision to the National Appeals 

Board.Id. § 2.26. On appeal, the National Appeals Board can affirm, reverse, 

or modify the USPC’s decision, or order a new hearing. Id. § 2.26(b)(1).

“A presumptive parole date shall be contingent upon an affirmative 

finding by the [USPC] that the prisoner has a continued record of good 

conduct and a suitable release plan[.]”). Id. § 2.12(d). In addition, “release .

. . shall be conditioned upon the completion of a satisfactory plan for parole 

supervision.” Id. § 2.28(e). The presumptive release date does not become 

effective until the USPC approves the plan for parole supervision. Alexander 

v. U.S. Parole Comm’n, 514 F.3d 1083, 1088 (10th Cir. 2008) (citing 28 

C.F.R. § 2.28(e)). “The purpose of a pre-release review shall be to determine 

whether the conditions of a presumptive release date by parole have been 

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satisfied. At least sixty days prior to a presumptive parole date, the case shall 

be reviewed on the record, including a current institutional progress report.”

28 C.F.R. § 2.14(b)(1). “The term effective date of parole refers to a parole 

date that has been approved following an in-person hearing held within nine 

months of the date, or following a pre-release record review.” Id. § 2.1(h). If 

the prisoner passes the pre-release screening, the “presumptive parole date” 

becomes an “effective date of parole.” Id.; see also Webber v. U.S. Parole 

Comm’n, 2007 WL 2683993, at *5 n.10 (S.D. Miss. Aug. 7, 2007). And even 

then, “[a] grant of parole shall not be deemed to be operative until a 

certificate of parole has been delivered to the prisoner.” 28 C.F.R. § 2.29(a); 

see also Durham v. U.S. Parole Comm’n, 306 F. App’x 225, 231 (6th Cir. 

2009).

The USPC can consider “any evidence” existing at the time of 

sentencing, including evidence of more serious offenses that were dismissed 

pursuant to a plea agreement. Page v. U.S. Parole Comm’n, 651 F.2d 1083, 

1086 (5th Cir. 1981) (citing Bistram v. United States Parole Board, 535 F.2d 

329, 330 (5th Cir. 1976) (per curiam)). The USPC has broad discretion when 

making parole determinations, but a court’s review of a parole decision is 

“quite circumscribed.” Van Etten v. United States Parole Comm'n, 96 F.3d 

144, 145 (5th Cir. 1996) (per curiam); see also Stroud v. U.S. Parole Comm’n, 

668 F.2d 843, 846 (5th Cir.1982) (“So long as there are no violations of any 

required due process protection and the Commission has acted within its 

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authority, we will not usurp the [USPC’s] position as established in the 

statutory scheme enacted by Congress.”); Elmore v. Chapa, 2018 WL 

1528796, at *3 (E.D. Tex. Feb. 15, 2018) (“Generally, the [USPC] is vested 

with absolute discretion in matters of parole.”), rec. accepted 2018 WL 

1525759 (E.D. Tex. Mar. 27, 2018) (citing Maddox v. U.S. Parole Comm’n, 

821 F.2d 997, 998 (5th Cir. 1987)). A court reviews a USPC decision only to 

determine whether there is “some evidence” in the record to support the

decision. Simpson v. Ortiz, 995 F.2d 606, 608 (5th Cir. 1993) (quoting 

Maddox, 821 F.2d at 1000); see also Van Etten, 96 F.3d at 145. “The 

[USPC]’s decisions involving the granting or denial of parole will not be 

disturbed absent flagrant, unwarranted or unauthorized action.” Elmore, 

2018 WL 1528796 at *3 (citing Portley v. Grossman, 444 U.S. 1311, 1312

(1980); Stroud v. U.S. Parole Comm'n, 668 F.2d 843, 846 (5th Cir. 1982)).

A USPC determination is reversible by a court only if the USPC’s decision is 

so arbitrary and capricious that it is beyond the USPC’s discretion, or it 

violates the prisoner’s constitutional rights. Elmore, 2018 WL 1528796, at 

*3 (citing Brown v. Lundgren, 528 F.2d 1050, 1054 (5th Cir. 1976)). 

Here, Davis’s parole potential has never graduated from the 

presumptive, contingency-ridden stage. Instead, on September 21, 2015, the 

USPC ordered a reconsideration of Davis’s presumptive parole date. App. 25 

(ECF No. 13). After his reconsideration hearing, the USPC rescinded its 

presumptive parole date of May 21, 2016, and ordered Davis to serve the 

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remainder of his life sentence. Id. at 26-28. Davis has not been granted a 

parole certificate by the USPC, and his parole has never been operative. See

28 C.F.R. § 2.29(a) (“A grant of parole shall not be deemed to be operative 

until a certificate of parole has been delivered to the prisoner.”). And because 

Davis has not actually been released on parole, he cannot demonstrate that 

his due process rights were violated because he was not deprived of a liberty 

interest. See Smith v. Gluch, 880 F.2d 1322 (6th Cir. 1989) (“[A] federal 

prisoner is not vested with a right to parole until he receives a certificate of 

parole.”). Therefore, Davis has no liberty interest in parole, and the Court 

should dismiss this claim.

1. The USPC had “some evidence” to support its decision to 

rescind Davis’s presumptive parole date.

Davis contends that the USPC’s decision to rescind his presumptive 

parole date was unjust because of the evidence it relied on in making its 

decision. Pet. 12 (ECF No. 3). Specifically, the USPC’s decision to rescind his 

presumptive parole date was based on court-martial testimony provided by 

Private Jaouni, stating that Davis admitted to Private Jaouni that Davis

murdered his wife. Id.

The USPC must find that a parole-eligible inmate is suitable for parole 

before the inmate is eligible for release. See 18 U.S.C. § 4206(a) (repealed); 

see also U.S. Parole Comm'n v. Geraghty, 445 U.S. 388, 391 (1980) (“Before 

releasing a prisoner on parole, the [USPC] must find, ‘upon consideration of 

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the nature and circumstances of the offense and the history and 

characteristics of the prisoner,’ that release ‘would not depreciate the 

seriousness of his offense or promote disrespect for the law’ and that it 

‘would not jeopardize the public welfare.’”) (quoting 18 U.S.C. § 4206(a)

(repealed)). 

Here, the USPC directed that Davis’s presumptive parole date be 

reviewed following the discovery of “new adverse information.” App. 25 

(ECF No. 13); see also 28 C.F.R. § 2.28(f). If the USPC had failed to order a 

reconsideration hearing under 28 C.F.R. § 2.28(f), the USPC would still have 

had to conduct a review under 28 C.F.R. § 2.14(b) before making Davis’s 

presumptive parole date an effective parole date. Following Davis’s

reconsideration hearing on May 10, 2016, the USPC “rescinded [Davis’s] 

presumptive parole date of May 21, 2016.” App. 26 (ECF No. 3). The USPC 

provided the following explanation in support of its decision to rescind 

Davis’s presumptive parole date: 

“[T]he Commission finds there is new and significant adverse 

information in your case which merits your previously 

established presumptive parole date rescinded and you be 

continued to the expiration of your sentence. This new adverse 

information includes the testimony of Private Jaouni at your 

trial, in which he stated you admitted to the murder of your 

wife. You have always maintained your wife’s death was a 

suicide. Thus, the Commission finds this new information is 

significant because it not only directly contradicts your claim of 

innocence, but also demonstrates your lack or remorse, lack of 

empathy for the victims of your crimes, and your lack of 

acceptance of responsibility for your actions. In light of this new 

adverse information, the Commission now concludes parole is 

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no longer compatible with the welfare of society and your 

discretionary release at this time would diminish the severity of 

your crimes and promote disrespect for the law. 

Id. at 26-27 (the USPC issued an Amended Notice of Action on August 9, 

2016, but it did not alter the reasons provided in the May 10 Notice of 

Action). The USPC’s decision relied on evidence from Davis’s court-martial 

trial record and hearings before the USPC. Id. at 9-20 (summarized version 

of the record of the trial). On appeal, the USPC’s National Appeals Board 

denied Davis’s administrative appeal and affirmed the decision and 

reasoning in the USPC’s May 10 Notice of Action. Id. at 32-33. 

The USPC’s decision to rescind Davis’s presumptive parole date was 

based on more than “some evidence” from the record to support the 

decision. Simpson, 995 F.2d at 608 (quoting Maddox, 821 F.2d at 1000); see 

also Van Etten, 96 F.3d at 145. The summarized record of Davis’s trial and 

the information provided by the family of his murdered wife demonstrates 

the USPC found Davis was not suitable for parole under the standard set 

forth in 18 U.S.C. § 4206(a) (repealed). See App. 9-20 (ECF No. 13).

Likewise, the USPC had a rational basis to rescind Davis’s presumptive 

parole date following its conclusion that “parole [was] no longer compatible 

with the welfare of society and your discretionary release at this time would 

diminish the severity of your crimes and promote disrespect for the law.” Id.

at 27. 

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In sum, the USPC had “some evidence” to support its decision to 

rescind Davis’s presumptive parole date, and the Court should deny Davis’s 

claim that the USPC “unjustly” rescinded his presumptive parole date. 

2. The USPC had sufficient evidence to decline to grant Davis’s 

parole. 

Next, Davis argues that the USPC changed its reasoning regarding 

why he was denied parole following a hearing on February 14, 2022. Pet. 12-

13 (ECF No. 3). Davis contends that decision to deny him parole was based 

on a “new opinion” that relies primarily on facts the USPC had before it in 

2022, when the USPC determined those facts failed to support the denial of 

his May 21, 2016 presumptive parole date. Id. at 12. Davis concludes that 

although the USPC found that he is likely to commit future offenses and was 

a danger to society, he believes his rehabilitative efforts are more 

compelling. Id. at 13; see also Pet. 42 (ECF No. 3) (male pattern risk scoring).

A federal prisoner’s two-thirds date is calculated by the BOP. Elmore, 

2018 WL 1528796, at *7. The BOP calculates a parole-eligible inmate’s twothird’s date by multiplying the number of days remaining on the prisoner’s

original sentence by two-thirds. Rogers v. Feather, 2013 WL 3243912, at *1 

(D. Or. June 26, 2013); see also 18 U.S.C. § 4206(d) (repealed); 28 C.F.R. § 

2.53(a). The USPC considers a parole eligible inmate for parole using the 

criteria set forth in 18 U.S.C. § 4206(d) (repealed), which provides: 

Any prisoner, serving a sentence of five years or longer, who is 

not earlier released under this section or any other applicable 

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provision of law, shall be released on parole after having served 

two-thirds of each consecutive term or terms, or after serving 

thirty years of each consecutive term or terms of more than 

forty-five years including any life term, whichever is earlier: 

Provided, however, that the Commission shall not release such 

prisoner if it determines that he has seriously or frequently 

violated institution rules and regulations or that there is a 

reasonable probability that he will commit any Federal, State, 

or local crime. 

18 U.S.C. § 4206(d) (repealed) (parole determination criteria) (emphasis in 

original and added); see also 28 C.F.R. § 2.53(a) (mandatory parole). The 

USPC held Davis’s latest hearing in a manner consistent with the parole 

determination criteria set forth in § 4206(d) (repealed). App. 36 (ECF No. 

3).

Following Davis’s two-thirds hearing, the USPC denied him parole for 

the following reasons: 

The [USPC] finds you have seriously violated the rules of the 

institution and there is a reasonable probability you will 

commit any Federal, State, or local crime if released. 

Specifically, while at the US Disciplinary Barracks, you were 

found guilty by the Discipline and Adjustment Board for 

Possession of Stolen Property in January 1997, Funds 

Manipulation in December 1997 (involving your receipt of mail 

containing a money order addressed to another inmate and 

sending and receiving money from the same address), and for 

Communicating a Threat to another inmate in January 2000. 

Additionally, and more recently, you were found guilty by the 

Discipline Hearing Officer for engaging in a fight with another 

inmate on 2/14/2019. The [USPC] finds this conduct 

constitutes a serious violation of the rules of the institution 

because it involved a fight over money the other inmate owed 

to you. Loaning money or anything of value to another inmate 

is also a violation of institutional rules and the fact that violence 

ensued over the debt owed emphasizes why this type of conduct 

is considered a serious violation of the rules. Furthermore, the 

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[USPC] finds the February 2019 Fight to be evidence of your 

current dangerousness to the public and demonstrates, even 

after more than 26 years in prison, you still can’t avoid resorting 

to violence over money owed to you by another inmate. The 

[USPC] also notes your lack of acceptance of responsibility for 

your crimes, as well as your continued insistence your wife’s 

death was due to suicide, despite the fact this theory was 

disproven in Court. The [USPC] also finds the sworn testimony 

of Private Jaouni at your trial directly contradicts your 

statements and also emphasizes your lack of acceptance of 

responsibility, your lack of remorse, and your lack of empathy 

toward the victims of your crimes you continue to stand 

convicted for nearly 30 years later. The [USPC] finds all of these 

factors, including the recentness of your serious violations of 

the rules of the institution, all creates a reasonable probability 

you will commit additional crimes if released at this time. 

App. 58 (ECF No. 13). Davis administratively appealed the USPC’s decision.

Id. at 60-79. The USPC’s National Appeals Board denied Davis’s appeal and 

affirmed the USPC’s decision. Id. at 80-82. 

The USPC’s decision to deny Davis parole was based primarily on his 

numerous disciplinary infractions. See App. 58 (ECF No. 13); see also 

Elmore, 2018 WL 1528796, at *3 (“In reaching a decision regarding parole, 

the [USPC] may use all relevant, available information.”) (citing Brown v. 

Lundgren, 528 F.2d 1050, 1054 (5th Cir. 1976)). Specifically, the USPC 

determined that Davis failed to meet the criteria for parole under § 4206 

(repealed) because the USPC found Davis “seriously” violated the rules of 

his institution, FCI Seagoville, with the following violations: (1) possessing 

stolen property, (2) manipulating funds while in custody, (3) 

communicating a threat, and (4) fighting while in BOP custody in 2019. App. 

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36-58 (ECF No. 13); see also Pet. 43-51 (ECF No. 3) (testimony from nine 

alleged witnesses to the 2019 fight Davis was involved in). The USPC further 

determined that there was “a reasonable probability [Davis would] commit 

additional crimes if released at this time.” App. 58 (ECF No. 13). For these 

reasons, the Court should deny the claim that the USPC “unjustly” denied 

him parole at his last hearing where the USPC had “some evidence” in 

support of its decision. See Simpson, 995 F.2d at 608 (quoting Maddox, 821 

F.2d at 1000); see also Van Etten, 96 F.3d at 145. 

C. To the extent Davis seeks relief on a petition for writ of coram nobis, 

his claim fails on the merits. 

Last, Davis’s petition includes several references to relief under “28 

U.S.C. § 1651,” which refers to a petition for a writ of error coram nobis. Pet. 

1-2, 4, 7 (ECF No. 3). A writ of coram nobis is “an extraordinary remedy 

available to a petitioner no longer in custody who seeks to vacate a criminal 

conviction in circumstances where the petitioner can demonstrate civil 

disabilities as a consequence of the conviction[.]” United States v. Esogbue, 

357 F.3d 532, 534 (5th Cir. 2004) (quoting Jimenez v. Trominski, 91 F.3d 

767, 768 (5th Cir.1996)); see also United States v. Hatten, 167 F.3d 884, 887 

n.6 (5th Cir. 1999) (citing United States v. Castro, 26 F.3d 557, 559 (5th Cir. 

1994)). A petitioner must show that a fundamental error justifies vacating 

his conviction and that sound reasons exist for his delay in seeking earlier 

relief. See United States v. Dyer, 136 F.3d 417, 422 (5th Cir. 1998) (coram 

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nobis will issue only to correct errors of “the most fundamental character” 

and “sound reasons” must exist for failure to seek appropriate relief earlier) 

(quoting United States v. Morgan, 346 U.S. 502, 511-12 (1954)). A petitioner 

must also show that the error challenged is of a sufficient magnitude to 

justify the extraordinary relief sought—a “complete miscarriage of justice.” 

Jiminez, 91 F.3d at 768 (citing Castro, 26 F.3d at 557); see also Esogbue, 357 

F.3d at 535. A writ of coram nobis is only available when “no other remedy 

may be available.” See United States v. Marcello, 876 F.2d 1147, 1154 (5th 

Cir. 1989); see also Dyer, 136 F.3d at 422. The Supreme Court has noted that 

it “is difficult to conceive of a situation in a federal criminal case today where 

[the writ] would be necessary or appropriate.” Carlisle v. United States, 517 

U.S. 416, 429 (1996). The writ of coram nobis should “not be used as a 

substitute for appeal and should only be employed to correct errors ‘of the 

most fundamental character.’” Dyer, 136 F.3d at 422 (quoting Morgan, 346 

U.S. at 512); see also Esogbue, 357 F.3d at 535. A writ of coram nobis also 

cannot be used to “override” § 2255’s statute of limitations or to 

“circumvent” the restrictions it imposes on unauthorized, successive 

motions. Frasier v. United States, 343 F. App’x 985, 986 (5th Cir. 2009) (per 

curiam). “In addition, a petitioner bears the considerable burden of 

overcoming the presumption that previous judicial proceedings were 

correct.” Dyer, 136 F.3d at 422. 

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The requisite elements for coram nobis relief are: (1) the ground for 

relief involves a fundamental error; (2) no other judicial remedy is available; 

(3) valid reasons exist to excuse the petitioner’s failure to seek relief on these 

issues in earlier proceedings; and (4) the petitioner is suffering or is 

threatened with adverse collateral consequences because of his conviction. 

Langston v. United States, 2016 WL 800210, at *14 (N.D. Miss. Feb. 29, 

2016).

 As discussed, Davis is serving a life sentence in the BOP, and he seeks 

release from incarceration through compassionate release. Davis is 

presently in custody at FCI Seagoville. https://www.bop.gov/inmateloc/

(last visited Nov. 9, 2023) (showing Davis is serving a life sentence at FCI 

Seagoville). Because Davis is in custody, he is not entitled to coram nobis

relief. See Esogbue, 357 F.3d at 534 (quoting Jiminez, 357 F.3d at 768); see 

also Hatten, 167 F.3d at 887 n.6 (citing Castro, 26 F.3d at 559).

Conclusion 

 The Court should dismiss or deny Davis’s petition. 

 Signed November 15, 2023. 

 ____________________________

 REBECCA RUTHERFORD

 UNITED STATES MAGISTRATE JUDGE

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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation shall be served on all 

parties in the manner provided by law. Any party who objects to any part of 

this report and recommendation must file specific written objections within 

14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R.CIV.

P. 72(b). In order to be specific, an objection must identify the specific 

finding or recommendation to which objection is made, state the basis for 

the objection, and specify the place in the magistrate judge's report and 

recommendation where the disputed determination is found. An objection 

that merely incorporates by reference or refers to the briefing before the 

magistrate judge is not specific. Failure to file specific written objections will 

bar the aggrieved party from appealing the factual findings and legal 

conclusions of the magistrate judge that are accepted or adopted by the 

district court, except upon grounds of plain error. See Douglass v. United 

Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).

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