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
2 

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. 
3 

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 
4 

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