United States District Court, N.D. Oklahoma
T. K. BENSON, Petitioner,
JANET DOWLING, Warden, Respondent.
OPINION AND ORDER
V. EACAN, UNITED STATES DISTRICT JUDGE.
August 30, 2017, petitioner T. K. Benson, a pro se prisoner
who is incarcerated at Dick Conner Correctional Center in
Hominy, Oklahoma, filed a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2241 (Dkt. # 1). He paid the
$5.00 filing fee on September 18, 2017 (Dkt. #
presents one ground for relief. He requests that his federal
sentence entered in N.D. Okla. Case No. 03-CR-090-TCK be
modified to run concurrently with his state sentence which
was entered in Tulsa County District Court Case No.
On May 8, 2003, I was sentenced to 36 mths in Federal prison.
Near[ly] a year later the State of Oklahoma sentenced me,
March 25, 2004, to 18 yrs at 85%. [M]y Fed. Sentence should
have started to run prior to my state conviction. However, I
am requesting this Court order my fed. sentence to run
concurrent with my state sentence, or I be credited with
service of the sentence from the time of my federal
conviction and the sentence be deemed completed since I
should have started service of my federal sentence before I
began my state time. Why I did not is a question I cannot
answer, however, it seems that I was supposed to start
service of time on the sentence I was first convicted of. My
federal indictment states I was convicted of my crime [of]
knowingly possessing a firearm on May 8, 2003, and my state
judgment and sentence states I was convicted of robbery March
25, 2004. [I]t is obvious my fed sentence began with the feds
near[ly] a year prior to my state conviction. Meaning my fed.
Sentence was already running and should have been discharged
by now. [B]ut, I'm told it will not start until after I
finish my state time. I believe this to be a violation of
criminal procedures. Holding a sentence in reserve until
after a sentence received after completed, or run concurrent
with my state sentence. [E]ither way the federal sentence
would be finished, as it should have been.
(Dkt. # 1 at 7-8).
review of the records for petitioner's state and federal
convictions indicates the alleged factual basis of this claim
is erroneous. The docket sheet for Tulsa County District
Court Case No. CF-2003-3195, viewed at www.oscn.net,
confirms petitioner's allegation that on March 25, 2004,
he was sentenced to eighteen (18) years in custody of the
Oklahoma Department of Corrections.
record for N.D. Okla. Case No. 03-CR-090-TCK, however,
refutes petitioner's allegation that he was sentenced in
federal court on May 8, 2003. The record shows the indictment
in N.D. Okla. Case No. 03-CR-090-TCK was filed on July 16,
2003. Id. (Dkt. # 1). On July 14, 2004,
after petitioner was convicted and sentenced in
state court, he entered a plea of guilty in federal court.
Id., (Dkt. # 11). On October 13, 2004, the Court
sentenced petitioner. Id., (Dkt. # 16). The
judgment, entered October 21, 2004, reflected
petitioner's sentence of thirty-eight (38) months'
imprisonment in the custody of the United States Bureau of
Prisons. Id., (Dkt. # 17). The judgment specifically
provided that “[t]his sentence is to run consecutively
to the eighteen (18) year term of imprisonment imposed in
Tulsa County District Court Case Number CF-2003-3195.”
Id. at 2. Petitioner did not appeal his federal
conviction and sentence, nor has he sought relief under 28
U.S.C. § 2255. Therefore, the Court finds
petitioner's claim that his federal sentence should be
served concurrently with his state sentence, because the
federal sentence was entered first, lacks a basis in fact and
is without merit.
Court further finds that any constitutional challenge to the
administration of petitioner's sentences based on his
claim that the state and federal sentences should be served
concurrently is clearly barred by the one-year statute of
limitations applicable to habeas corpus petitions and §
2255 motions. See 28 U.S.C. §§ 2244(d),
2255(f). The one-year limitation period also applies to
§ 2241 habeas corpus actions. Burger v. Scott,
317 F.3d 1133, 1138 (10th Cir. 2003).
one-year statute of limitations began to run on
petitioner's claim from the later of (1) the date when
petitioner could have discovered through the exercise of due
diligence that his sentences were to be served consecutively,
or (2) the date on which the judgment became final.
See 28 U.S.C. §§ 2244(d)(1), 2255(f).
Petitioner could have discovered that his sentences were to
be served consecutively when the judgment in the federal case
was entered on October 21, 2004. That judgment became final
fourteen (14) days later on November 4, 2004, which was the
date his opportunity to file a notice of appeal expired.
See Fed. R. App. P. 4(b)(1)(A). This habeas corpus
action filed in 2017 clearly is time barred.
the factual basis of petitioner's claim is erroneous, and
the claim is barred by the statute of limitations, the Court
finds this petition must be dismissed with
11(a), Rules Governing Section 2254 Cases in the United
States District Courts, instructs that “[t]he
district court must issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant.” Pursuant to 28 U.S.C. § 2253(c)(2),
the Court may issue a certificate of appealability
“only if the applicant has made a substantial showing
of the denial of a constitutional right.” A petitioner
can satisfy that standard by demonstrating that the issues
raised are debatable among jurists, that a court could
resolve the issues differently, or that the questions deserve
further proceedings. Slack v. McDaniel, 529 U.S.
473, 483-84 (2000) (citing Barefoot v. Estelle, 463
U.S. 880, 893 (1983)). In addition, when the Court's
ruling is based on procedural grounds, a petitioner must
demonstrate that “jurists of reason would find it
debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason
would find it debatable whether the district court was
correct in its procedural ruling.” Slack, 529
U.S. at 484.
case, the Court concludes that a certificate of appealability
should not issue. Nothing in the record suggests that the
Court's determination of petitioner's habeas corpus
claim is incorrect or debatable among jurists of ...