* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** After examining the briefs and the appellate recor d, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The cause is therefore ordered su bmitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### August 24, 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

FRED DUANE TUGGLE, Petitioner - Appellant,

v. COUNTY OF CHEROKEE, Tahlequah, Oklahoma; STATE OF OKLAHOMA, Respondents - Appellees. No. 05-6156 (D.C. No. 05-CV-77-T) (W.D. Okla.)

ORDER AND JUDGMENT *

Before KELLY , O’BRIEN , and TYMKOVICH , Circuit Judges. **
Fred Duane Tuggle, an Oklahoma state prisoner appea ring pro se, filed a Petition for Order Nunc Pro Tunc in the federal dis trict court arguing the State violated his plea agreement and held him beyond the time agreed. The district court referred the case to the magistrate judge, wh o recommended the petition be- 2 -

construed as a 28 U.S.C. § 2254 habeas petition. T he magistrate judge further recommended the petition so construed be referred t o this court as a successive petition. 28 U.S.C. §§ 1361, 2244(b)(3)(A). Mr. T uggle strongly objected to having his petition reclassified, asserting that “t he sole purpose of [his] . . . petition . . . [is] to correct the record” regardin g the terms of his plea agreement. R. Doc. 9 at 1. In light of Mr. Tuggle’s objection s, the district court declined to construe his motion as a § 2254 petition and reject ed the magistrate judge’s recommendation. The court further concluded that i t did not have the authority to alter or amend the state court judgment by way of anunc pro tunc order, and thus denied Mr. Tuggle’s motion. Exercising our jurisdi ction under 28 U.S.C. § 1291 we affirm. As we recently stated, the term “[nunc pro tunc] is merely descriptive of the inherent power of the court to make its records spe ak the truth.” Sviridov v. Ashcroft , 358 F.3d 722, 731 (10th Cir. 2004); accord Eaton v. Weaver Mfg. Co. , 582 F.2d 1250, 1254 (10th Cir. 1978); Cairns v. Ric hardson , 457 F.2d 1145, 1149 (10th Cir. 1972). Such power does not include the authority to change, modify or alter the judgment; rather, it simply allows the “c ourt of record. . . to correct the record of a judgment theretofore rendered by it, in order that such record shall truly reflect the judgment actually rendered.” Eat on , 582 F.2d at 1254 n.6 (emphasis added). We have found no authority permi tting a court to correct, by- 3 -

way of a nunc pro tunc order, a judgment of anothercourt. As such, we agree that the district court lacked authority to “alter by the entry of an order nunc pro tunc or otherwise, [the state court judgment].” R. Doc. 10 at 1-2. Mr. Tuggle’s petition to proceed on appeal without prepayment of fees under 28 U.S.C. § 1915 is GRANTED, and we remind hi m that he is obligated to continue making partial payments until the entire f ee is paid. AFFIRMED.

Entered for the Court Paul J. Kelly, Jr. Circuit Judge