United States District Court, W.D. Oklahoma
STEPHEN P. FRIOT UNITED STATES DISTRICT JUDGE.
action, petitioner Timothy Charles Fenimore challenges the
Bureau of Prison's (BOP's) calculation of his
sentence, seeking habeas relief under 28 U.S.C. § 2241.
Petitioner appears pro se, and his pleadings are
Judge Suzanne Mitchell entered her Report and Recommendation
on May 1, 2017, recommending the court deny habeas relief.
Doc. no. 23.
objects to two aspects of the Report. Doc. no. 24.
first objection relates to a dispute about when
petitioner's federal sentence commenced, specifically,
whether he is entitled to credit on his federal sentence for
the period of January 7, 2005 through January 14, 2005. The
Report indicates that petitioner was released to federal
custody on January 14, 2005, and began serving his federal
sentence on that date, citing documents in support. Doc. no.
23, pp. 8-9 of 23, n.3. Petitioner contends he began his
federal sentence when the ROR Bond was posted on January 7,
2005, citing the state court order of that date which states
that he was to “be placed in federal custody.”
See, doc. no. 18-12 (Order for Own Recognizance Bond
and Transfer to Federal Custody). Petitioner argues, among
other things, that the magistrate judge was “duped into
believing that this Petitioner was released on ROR Bond on
January 14, 2005 rather than the actual date that it occurred
on, January 7, 2005.” Doc. no. 24, p. 3 of 6.
Petitioner argues that a sentence commences on the date the
defendant is received in custody awaiting transportation, and
that the Full Faith and Credit Clause requires the court to
give credit to the state court judgment (apparently referring
to the state court order of January 7, 2005, entered when the
ROR Bond was posted and stating that petitioner was to be
placed in federal custody).
court rejects the first objection as grounds for habeas
relief. Contrary to petitioner's contentions, the
magistrate judge did not fail to appreciate any of
petitioner's arguments, nor was she “duped”
or confused about when petitioner's federal custody
began. She noted petitioner's dispute with the respondent
about when petitioner's federal sentence commenced. But
as explained in the Report, the period related to this
particular dispute (January 7 through January 14, 2005) was
not available to be credited toward petitioner's federal
sentence. As the Report states, that period was subsumed
within the period of April 12, 2004 through February 4, 2005,
the period which the BOP confirmed the Oklahoma Department of
Corrections had credited to petitioner's prior state
custody. Doc. no. 23, p. 9 of 13. Federal law prohibits a
prisoner from receiving credit toward a federal sentence for
any time spent in official detention which has been credited
against another sentence, and no exception to that rule
applies here. Id., pp. 7-11. Accordingly, the BOP
could not credit any time within the April 12, 2004 to
February 4, 2005 period to petitioner's federal sentence.
second objection is based on the Report's reliance on
Brown v. Parker, 771 P.3d 1270 (10th Cir.
2014). Petitioner argues that Brown, quoted in the
Report at doc. no. 23, pp. 11-12 of 13, is distinguishable
and does not control. Brown found that Oklahoma
district courts may make a sentence concurrent or consecutive
but that Oklahoma law does not provide any authority for the
imposition of a coterminous sentence. Brown, 771
F.3d at 1273. Petitioner's attempts to distinguish
Brown provide no basis by which to avoid the holding
in Brown. As made clear in Brown, an
Oklahoma court order which purportedly provides that
sentences shall run coterminously is a nullity. Id.
Petitioner's second objection provides no basis for
reasons stated above, petitioner's objections to the
Report as presented in doc. no. 24, will be denied.
court notes petitioner's statement in doc. no. 24 that
one other objection, filed on January 20, 2017, remains
pending. See, doc. no. 24, p. 1 of 6, n.1, referring
to an objection (doc. no. 17) to Magistrate Judge
Mitchell's order of December 20, 2016 (doc. no. 13). The
objection of January 20, 2017 takes issue with Magistrate
Judge Mitchell's order granting the respondent a
forty-five day extension within which to file an answer or a
response brief. In that objection, petitioner presents
several substantive grounds intended to show that the
magistrate judge erred in her order of December 20, 2016.
Upon de novo review, the court finds that the
magistrate judge did not abuse her discretion or otherwise
err when she permitted the extension and entered the December
20, 2016 order. The objection at doc. no. 17 will be denied.
reviewed petitioner's objections de novo, and
having reviewed the entirety of the Report, all objections
are DENIED, and the Report is ACCEPTED, ADOPTED and AFFIRMED.
As recommended in the Report, the petition for habeas relief
Rules applicable to proceedings under 28 U.S.C. § 2254
provide that the district court may apply those rules in
other habeas matters. See, Rules Governing Habeas
Cases Under § 2254. Rule 11 of those rules, which the
court applies in these § 2241 proceedings, requires the
district court to issue or deny a certificate of
appealability when it enters a final order adverse to ...