Fenimore v. Scarantino

Filing 25

ORDER ADOPTING 23 Report and Recommendation, DENYING petition for habeas relief, DENYING a certificate of appealability. Signed by Honorable Stephen P. Friot on 6/5/2017. (llg)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
TIMOTHY CHARLES FENIMORE,
Petitioner,
-vsTHOMAS SCARANTINO, Warden,
Respondent.

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Case No. CIV-16-1209-F

ORDER
In this 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 liberally construed.
Magistrate Judge Suzanne Mitchell entered her Report and Recommendation
on May 1, 2017, recommending the court deny habeas relief. Doc. no. 23.
Petitioner objects to two aspects of the Report. Doc. no. 24.
The 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).
The 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.
Petitioner’s 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
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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 habeas relief.
For the reasons stated above, petitioner’s objections to the Report as presented
in doc. no. 24, will be denied.
The 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.
Having 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 is DENIED.
The 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
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appealability when it enters a final order adverse to the applicant. Petitioner has not
made the requisite showing and a certificate of appealability is DENIED.
IT IS SO ORDERED this 5th day of June, 2017.

16-1209p001.docx

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