### On agreement of the parties and pursuant to 28 U.S.C
. 1 

### § 636(c), the case was referred to a United States magistrat e judge for disposition. ___________ No. 95-3292

___________ Charles R. Hendrix, * * Appellee, * * Appeal from the United States v. * District Court for the * Western District of Arkansas. Larry Norris, Director, Arkansas* Department of Correction, * * Appellant. *

___________ Submitted: March 11, 1996 Filed: April 22, 1996

___________ Before MAGILL, HEANEY, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________ MAGILL, Circuit Judge.
Charles R. Hendrix brought this 28 U.S.C. § 2254 action in the United States Dis trict Court for the Western District of Arkansas, petitioning 1 for a writ of habeas corpus against the Director of the Arkansas Departmen t of Correction (Director). Hendrix alleged that the Director was improperl y requiring him to serve consecutive state and federal sentences, when the sentenc es should have been concurrent. The district court found tha t Hendrix was entitled to relief and granted the writ of habeas corpus. We vacate the district court's judgment and remand to the district court to

### -2-

consider his petition for a writ of habeas corpu s as a petition for a writ of error coram nobis.

I.

On Decemb er 2, 1991, Hendrix pled guilty in Arkansas state court to one count of breaking and entering, two counts of burglary, and one count of robbery. In accordance with a plea agreement , Hendrix was sentenced to concurrent six- and twenty-year sentences. On January 23, 1992, Hendrix pled guilty in the United States District Court for the Western District of Arkansas to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). He was sentenced to a term of thirty months imprisonment and three years supervised relief, and ordered to pay a $1000 fine
. Hendrix 's federal public defender, who did not represent him in stat e court, advised the federal court that any proble ms with the concurrency of Hen drix's state and federal sentences could be resolved in state court
. In its sentence, the district court did not address whether Hendrix' s fed eral sentence was to be served concurrently with his state sentence
. The Arkansas state co urt issued an amended judgment and order on February 3, 1992, declaring that the December 2, 1991 sentences were to ru n concurrently with Hendrix's federal sentence.
Hendrix began serving his state sentences. In July 1992, Hendr ix was told by t he Arkansas Department of Corrections that he was to serve hi s federal sentence consecutively to his state sentences, and that the Federa l Bureau of Prisons would not accept him until he had served his Arkansa s sentence. Hendrix mo ved to withdraw his state guilty plea, alleging that the state had breached his plea agreement becaus e his federal sentence was not c oncurrent to his state sentences. Hendrix's motion was denied i n state court, and he did not appeal.
Hendrix brought the instant action in July 1994, again

### -3-

alleg ing that the state had breached his plea agreement. Following a n evidentiary hearing, the district court held that, while Hendrix had faile d to pursue all available state postconviction rel ief, it would exercise its "equitable power to l ook beyond a state procedural bar and proceed to the merits of a habeas co rpus petition." Mem. Op. at 7 (quoting McCleskey v. Zant , 499 U.S. 467, 490 (1991)). The district court then found tha t Hendrix had entered his guilty plea in reliance on the plea agreement that his state and federal sentences would run concurrently, and that the plea agreement had been ef fectively breached by the consecutive running of the sentences. This breach invalidated Hendrix's gu ilty plea and entitled him to relief. The district court ordered the Director to release Hendrix fro m state custody to the custody of the Federal Bure au of Prisons in order for Hendrix to serve his federal sentence. Upon the completion of his federal sentence, Hendrix was to be returned to state custody, to serve the rest of his state sentences.

II.

When co nsidering a petition for a writ of habeas corpus, we revie w the district court's legal conclusions de novo. Dodd v. Nix , 48 F.3d 1071 , 1073 (8th Cir. 1995).
We find n o grounds for a successful habeas action against the state in this case. Pursuant to a plea agreement, Hendrix pled guilty to severa l serious criminal charges, and received a far lighter sentence than he migh t have rece ived had his case gone to trial. See Appellant's App. at 6 6 (si xty-six-year possible sentence). To date, Hendrix has served only a fraction of his six-and twenty-year concurrent s entences in state custody. Rather than breaching its agreement with Hendrix, the state scrupulously honored the plea bargain: the state requested th at Hendrix serve his state senten ces concurrently with his federal sentence, and the state cour t entered such an order. That federal prosecutors did

### -4-

not make a similar request in federal court does not mean that the state breac hed its plea agreement; "state prosecutors cannot bind federa l prosecutors without the latter's knowledge and c onsent." United States v. Fuzer , 18 F.3d 517, 520 (7th Cir. 1994). Neither is the state cour t responsible for the f ederal court's imposition of a consecutive sentence: the discretion of a f ederal sentencing court cannot be limited by a state court's judgment. See United States v. Adair , 826 F.2d 1040, 1041 (11th Cir. 1987) (per curiam) (federal court could impose sentence consecutive to state sentence, although state court had imposed a concurrent sentence)
.
We disagree with the district court's conclusion that Hendrix' s guilty plea in the state court was invalid. We assume, without accepting, that the state court's apparent failure to warn Hendrix that the federal court need not impose a concurrent sentence could result in an invali d guilty plea. See, e.g. , Finch v. Vaughn , 67 F.3d 909, 916 (11th Cir. 1995 ) (habeas petitioner's plea-bargained guilty plea in state court wa s involun tary because no one had explained that the federal court coul d reject the state court's imposition of concurrent state and federa l se ntences). Hendrix, however, testified during the district court' s evidentia ry hearing that, even if it had been explained to him that hi s guiltyplea in state court could have no effect on his federal sentence, he would s till have pled guilty. See Tr. of evidentiary hr'g at 31
. Because Hendrix wouldhave pled guilty had he possessed this information, his plea is not rendered involuntary in its abse nce. See Rogers v. United States , 1 F.3d 697, 699-700 (8th Cir. 1993) (per curiam) (guilty plea vali d where sentencing court's failure to inform defen dant of parole eligibility
was not "causally connected to [defendant's] plea and conviction " (quotations omitted)). Because Hendrix's guilty plea in the state court
was valid, the district court erred in issuing a writ of habeas corpu s against the

### Because we have determined that the distr ict court improperly 2 

### granted habeas relief on the merits, we need not consider th e Di rector's argument that the district court erred in forgivin g Hendrix's procedural default. -5- state. 2

III.

The problem with Hendrix's sentences, if a problem indeed exists , lies wi th his federal sentence. While it is clear that the state cour t intend ed Hendrix to serve concurrent state and federal sentences, th e intent of the federal sentencing court is uncertain. The district court
ma de no mention of whether Hendrix's federal sentence was to ru n concurrentlywith his state sentence. Pursuant to 18 U.S.C. § 3584(a) , "[m]ul tiple terms of imprisonment imposed at different times ru n consecuti velyunless the court orders that the terms are to ru n concurrently." Normally, therefore, we would conclude from the district court's silence that it intended Hendrix's sente nces to run consecutively.

We are concerned, however, that such an assumption may work a n injustice in this case. There is some evidence that federal prosecutors also agreed to seek concurrent state and federal sentences, see Mem. Op. at 8 , and the federal sentencing court was apparently misinformed b y Hendrix's public defender that problems with concurrency of sentences coul d be dealt with by the state court. Id. at 9. Because Hendrix has not yet begun to serve his federal sentence, the proper means of challenging it is to petition for a writ of error cora m nobis against the proper federal defendants. See Zabel v. United States Attorney , 829 F.2d 15, 17, (8th Cir. 1987) (per curiam). We therefor e vacate the district court's grant of a writ of habeas corpus, and remand this case to the district court for consideratio n as a petition for a writ of error coram

### -6-

nobis.
Heaney, Circuit Judge, dissenting.
I respectfully dissent for the reaso ns stated by the district court. Although it is my hope that a writ of error coram nobis will serve the sam e ultimate p urpose as the writ of habeas corpus granted by the distric t court, I believe that the remand--except with directions to remove th e fed eral detainer--is an unnecessary step. In light of the prosecutor' s agreement and all the parties' expressed intent, I believe the interests of justice would best be served by the approach taken by the distric t court.
A true copy.

Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.