Robert Allen Custard v. Scott Crow

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
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ROBERT ALLEN CUSTARD,
Petitioner - Appellant,
v.
SCOTT CROW,
Respondent - Appellee.
No. 20-6092
(D.C. No. 5:19-CV-00540-J)
(W.D. Okla.)
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ORDER AND JUDGMENT*
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Before PHILLIPS, McHUGH, and CARSON, Circuit Judges.
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Robert Custard, an Oklahoma prisoner, appeals the district court’s dismissal of
his petition for habeas corpus under 28 U.S.C. § 2241. Exercising jurisdiction under
28 U.S.C. § 1291, we affirm.
BACKGROUND
Custard is serving a 30-year prison sentence for a 1993 felony conviction in
Stephens County, Oklahoma, for knowingly concealing stolen property after a felony
* After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
FILED
United States Court of Appeals
Tenth Circuit
March 1, 2021
Christopher M. Wolpert
Clerk of Court
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conviction. Before October 2017, Custard was in federal prison for a separate 1993
felony conviction in the District of Colorado for kidnapping and possession of a
firearm after a felony conviction. Originally, Custard’s federal sentence was 360
months’ imprisonment. But, following the Supreme Court’s decision in Johnson v.
United States, 576 U.S. 591, 606 (2015), the federal court resentenced Custard in
October 2017 to a shorter term of imprisonment: 137 months. Based on this new
sentence, Custard had overserved his federal sentence by thirteen or fourteen years. 1
Custard began serving his Oklahoma sentence, which the state court had made
consecutive to his federal sentence, after his release from federal custody. Custard
filed a § 2241 petition asserting he is constitutionally entitled to credit toward his
Oklahoma sentence for the time he overserved on his federal sentence. The district
court dismissed the petition and granted a certificate of appealability. Custard now
appeals.
DISCUSSION
Because he proceeds pro se, we construe Custard’s arguments liberally, but we
“cannot take on the responsibility of serving as the litigant’s attorney in constructing
arguments and searching the record.” Garrett v. Selby Connor Maddux & Janer,
425 F.3d 836, 840 (10th Cir. 2005). We review the district court’s dismissal of
Custard’s § 2241 petition de novo. See Abernathy v. Wandes, 713 F.3d 538, 544
(10th Cir. 2013).
1 The parties differ as to the exact date Custard’s revised federal sentence
ended, but their disagreement is not material to this appeal.
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This court has not squarely addressed the question Custard’s petition presents.
We have held a state prisoner is constitutionally entitled to credit against a
consecutive state sentence for time served on a state sentence later determined to be
erroneous. See Goodwin v. Page, 418 F.2d 867, 868 (10th Cir. 1969) (“To hold
otherwise would abuse due process, shock the judicial conscience and effect the
imposition of a cruel and unusual punishment under the eighth amendment.”). We
have also held, though, that a federal prisoner is not constitutionally entitled to credit
against a federal sentence for time served on a state sentence even where the state
court ordered the state sentence be concurrent with the federal sentence. See
Bloomgren v. Belaski, 948 F.2d 688, 691 (10th Cir. 1991).
We have not previously addressed whether a state prisoner is constitutionally
entitled to credit against a consecutive state sentence for time served on a federal
sentence later determined to be erroneous. The Eighth Circuit, however, confronted
this situation in Bagley v. Rogerson, 5 F.3d 325, 330 (8th Cir. 1993). The court
rejected the prisoner’s claim to credit against the federal sentence:
In short, the federal Constitution did not require the
State . . . to grant [the petitioner] credit on a state sentence
on account of legal errors made by the federal district court
that had sentenced him on federal convictions that were
later reversed on appeal. If an injustice has been done, it
has been done by the United States, not by the State . . . .
Id. We conclude this reasoning is persuasive. Custard “owed a debt to two separate
sovereigns, each of which ha[s] a right to exact its debt independently of the other.”
Goode v. McCune, 543 F.2d 751, 753 (10th Cir. 1976). And, neither the Due Process
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Clause, the Eighth Amendment, nor any other constitutional provision requires that
Oklahoma modify its sentence to account for the excessive length of a sentence
imposed in a different jurisdiction for a different crime. The district court therefore
correctly dismissed Custard’s petition.
In light of this ruling, we need not consider the district court’s rejection of
Oklahoma’s failure-to-exhaust argument.
CONCLUSION
We affirm the judgment of the district court. We deny Custard’s motion for
appointed counsel, and we deny as moot his motion for expedited ruling.
Entered for the Court
Gregory A. Phillips
Circuit Judge
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