United States District Court, E.D. Oklahoma
T.K. BENSON, Petitioner,
JANET DOWLING, Warden, Respondent.
OPINION AND ORDER
R Payne United States District Judge Eastern District of
T.K. Benson, a pro se prisoner who is incarcerated at Dick
Conner Correctional Center in Hominy, Oklahoma, has filed a
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2241. He requests that his federal sentence
entered in N.D. Okla. No. 03-CR-090-TCK be modified to run
concurrently with his state sentence entered in Tulsa County
District Court No. CF-2003-3195:
On May 8, 2003, I was sentenced to 36 months in Federal
prison. Near[ly] a year later the State of Oklahoma sentenced
me, March 25, 2004, to 18 yrs at 85%. My 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
knowingly possessing a firearm on May 8, 2003, and my state
judgment and sentence states I was convicted of Robbery March
25, 2004. It 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. But, I'm told it will not start until after I
finish my Fed time. I believe this to be a violation of
criminal procedures. Holding a sentence in reserve until
after a sentence received after the first is completed. All I
ask is the fed time be found to be completed, or run
concurrent with my state sent. [E]ither way the Federal
sentence would be finished, as it should have been.
(Dkt. 1 at 4-6).
review of the record for Petitioner's state and federal
convictions demonstrates that Petitioner's understanding
of the facts providing the basis of his claim is erroneous.
The docket sheet for Tulsa County District Court No.
CF-2003-3195 confirms Petitioner's factual allegation
that on March 25, 2004, after a jury trial, the trial judge
sentenced him, in accordance with the jury's
recommendation, to an 18-year sentence in the custody of the
Oklahoma Department of Corrections.
record for N.D. Okla. 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 No.
03-CR-090-TCK was filed on July 16, 2003. See N.D.
Okla. No. 03-CR-090-TCK, Dkt. 1. On July 14, 2004,
after Petitioner already had been convicted and
sentenced in state court, Petitioner entered a plea of guilty
in federal court. Id., Dkt. 11.
October 13, 2004, the federal district court sentenced
Petitioner. Id., Dkt. 16. The judgment, entered
October 21, 2004, reflects 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 provides 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., Dkt. 17 at 2.
Petitioner did not appeal his federal conviction and
sentence, nor has he sought relief under 28 U.S.C. §
2255. Therefore, his 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
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 clearly is 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 limitation period began to run on Petitioner's
claim from the later of (1) the date when he 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. 28 U.S.C. §§
2244(d), 2255(f). Petitioner's judgment in N.D. Okla. No.
03-CR-090-TCK, entered on October 21, 2004, became final
fourteen (14) days later on November 4, 2004, which was the
date his opportunity to file a direct appeal expired.
See Fed. R. App. P. 4(b)(1)(A). The deadline for
challenging the sentence was one year later in 2005, thus
this habeas corpus action filed in 2016 clearly is time
the factual basis of Petitioner's claim is erroneous, and
the claim is barred by the statute of limitations, the Court
finds the petition must be dismissed.
Court further concludes Petitioner has not shown “at
least, 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 [this] Court was correct in its procedural
ruling.” Slack v. McDaniel, 529 U.S. 473, 484
(2000). See also 28 U.S.C. § 2253(c).
Petitioner, therefore, is denied a certificate of
Petitioner's petition for a writ of habeas corpus (Dkt.
1) is DISMISSED, and Petitioner is ...