UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ ROBERT ALLEN CUSTARD, Petitioner - Appellant,

v. SCOTT CROW, Respondent - Appellee. No. 20-6092 (D.C. No. 5:19-CV-00540-J) (W.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before PHILLIPS , McHUGH , and CARSON , Circuit Judges.

________________ _________________ Robert Custard, an Oklahoma prisoner, a ppeals 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 se ntence for a 1993 felony conviction in Stephens County, Oklahoma, for knowingly concealing stolen property after a felony

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not ma terially 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve 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 Court2 conviction. Before October 2017, Custar d was in federal pris on for a separate 1993 felony conviction in the District of Colo rado for kidnapping and possession of a firearm after a felony conviction. Orig inally, Custard’s federal sentence was 360 months’ imprisonment. But, followi ng the Supreme Court’s decision in Johnson v. United States , 576 U.S. 591, 606 (2015), the fede ral court resentenced Custard in October 2017 to a shorter term of impris onment: 137 months. Based on this new sentence, Custard had overserve d his federal sentence by th irteen or fourteen years. 1 Custard began serving his Oklahoma sent ence, which the state court had made consecutive to his federal sent ence, after his release from federal custody. Custard filed a § 2241 petition asserting he is constitutionally entitl ed to credit toward his Oklahoma sentence for the time he overserve d on his federal senten ce. 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 dist rict 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 th e question Custard’s petition presents. We have held a state pris oner is constitutionally enti tled to credit against a consecutive state sentence for ti me served on a state senten ce later determined to be

erroneous. See Goodwin v. Page , 418 F.2d 867, 868 (10th Cir. 1969) (“To hold otherwise would abuse due pr ocess, shock the judicial conscience and effect the imposition of a cruel and un usual punishment under the ei ghth amendment.”). We have also held, though, th at a federal prisoner is not constitutionally entitled to credit against a federal sentence fo r time served on a state se ntence even where the state court ordered the state sentence be conc urrent with the federal sentence. See Bloomgren v. Belaski , 948 F.2d 688, 691 ( 10th Cir. 1991). We have not previously addressed whet her a state prisoner is constitutionally entitled to credit ag ainst a consecutive state senten ce for time served on a federal sentence later determined to be erroneous. The Eighth Ci rcuit, however, confronted this situation in Bagley v. Rogerson , 5 F.3d 325, 330 (8th Cir. 1993). The court rejected the prisoner’s claim to cr edit against the federal sentence: In short, the federal Constitution did not require the State . . . to grant [the peti tioner] credit on a state sentence on account of legal errors made by the federal district court that had sentenced him on fede ral 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 i ndependently of the other.” Goode v. McCune , 543 F.2d 751, 753 (10th Cir. 1976) . And, neither the Due Process4 Clause, the Eighth Amendment, nor any ot her constitutional provision requires that Oklahoma modify its sentence to account for the excessive length of a sentence imposed in a different jurisdiction for a diff erent crime. The district court therefore correctly dismissed Custard’s petition. In light of this ruling, we need not c onsider 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