                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           FEB 15 2001
                                    TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                       No. 00-6302
 FRED DEXTER LEE,                                  (D.C. No. CIV-00-1050-T)
                                                          (W.D.Okla.)
           Defendant-Appellant.




                                 ORDER AND JUDGMENT       *




Before HENRY , BRISCOE and MURPHY, Circuit Judges.


       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist 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.

       Defendant Fred Dexter Lee, a federal prisoner appearing pro se, seeks a

certificate of appealability to appeal the district court’s dismissal of his 28 U.S.C.



       This order and judgment is not binding precedent, except under the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

doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
§ 2255 habeas petition. We deny Lee’s request for relief and deny his request to

proceed in forma pauperis on appeal.

      In 1986, Lee “walked away from the correctional institution where he was

incarcerated by the state [of Oklahoma].” Tr. Dec. 12, 1986, at 4. On December

18, 1986, Lee pleaded guilty in Oklahoma federal court to aggravated bank

robbery and was sentenced to thirteen years in prison. The oral and written

records of sentencing were silent as to whether the federal sentence would be

concurrent with or consecutive to his state sentence. Lee was returned to the

state for completion of his state sentence on December 22, 1986. He was

delivered to federal authorities on February 10, 1992, to commence serving his

federal sentence.

      On August 1, 1997, Lee filed a motion for clarification of sentence in

Oklahoma federal court, contending the court was “very clear at sentencing” that

his federal sentence was to run concurrently with his state sentence. In denying

the motion, the district court found that clarification was not required because

“both the prevailing presumption in the Tenth Circuit at the time the defendant

was sentenced and the applicable statute dictated that the defendant’s federal

sentence would run consecutively to any state sentence he served.” Doc. 45 at 1-

2 (internal citations omitted).

      Lee filed a 28 U.S.C. § 2241 habeas petition in Colorado federal court, the


                                         2
state where he was confined, contending he should have been released on

December 18, 1999, because his federal sentence was concurrent with his state

sentence. The court dismissed the petition, holding Lee had an adequate and

effective remedy under 28 U.S.C. § 2255. Lee filed a § 2255 petition in

Oklahoma federal court, again asserting his federal sentence should have expired

on December 18, 1999. The district court denied the petition because Lee had

already raised the issue, and the petition was time barred under the Anti-

Terrorism and Effective Death Penalty Act.

       Lee is in effect claiming he is entitled to immediate release. “A claim to

immediate release on the ground that a federal sentence has been served in full is

a matter properly raised in a 28 U.S.C. § 2241 petition for a writ of habeas

corpus.” United States v. Scott , 803 F.2d 1095, 1096 (10th Cir. 1986).

       We recognize that Lee filed this § 2255 action in Oklahoma federal court

because the Colorado federal court dismissed his § 2241 action after finding he

had an adequate remedy under § 2255. A petition under 28 U.S.C. § 2241 must

be filed in the district where the prisoner is confined.   See Haugh v. Booker , 210

F.3d 1147, 1149 (10th Cir. 2000).

       Jurisdictional defects that arise when a suit is filed in the wrong federal

district may be cured by transfer under the federal transfer statute, 28 U.S.C.

§ 1631, which requires a court to transfer an action “if the transfer is in the


                                              3
interest of justice.”   Id. at 1150. We are “authorized to consider the

consequences of a transfer by taking ‘a peek at the merits’ to avoid raising false

hopes and wasting judicial resources that would result from transferring a case

which is clearly doomed.”     Id. We proceed to examine the merits of Lee’s

contentions.

       Lee’s assertion that the presumption of a concurrent sentence arises when

the record is silent as to whether the sentence is concurrent or consecutive was

addressed in the denial of his motion for clarification in 1997. In     United States

v. Earley , 816 F.2d 1428 (10th Cir. 1987), the court recognized that before

November 1, 1987, “‘[a]bsent clear language to the contrary, it is presumed that

sentences imposed on more than one offense at the same time, or at different

times, will run concurrently.’” 816 F.2d at 1430 (citing      Subas v. Hudspeth , 122

F.2d 85 (10th Cir. 1941)). This rule only applied to situations where there were

multiple federal sentences. See id. Here the issue is whether a federal sentence

should run concurrently with a state sentence.

       Federal sentences imposed before November 1, 1987, “shall commence to

run from the date on which such person [was] received at the penitentiary,

reformatory, or jail for service of said sentence.” 18 U.S.C. § 3568;     Taylor v.

Baker , 284 F.2d 43, 44 (10th Cir. 1960). Since a federal sentence begins when

an inmate arrives at a federal institution, the presumption that sentences are to


                                             4
run concurrently “does not operate . . . if one sentence is from federal court and

the other from a state court.”   Causey v. Civiletti , 621 F.2d 691, 693 n.2 (5th Cir.

1980).

       Our review of the record and the briefs on file convinces us that Lee is not

entitled to relief under 28 U.S.C. § 2241, and that transfer of this action would

therefore not be in the interest of justice. We DENY Lee’s request for relief.

The request to proceed in forma pauperis on appeal is DENIED.

                                                Entered for the Court

                                                Mary Beck Briscoe
                                                Circuit Judge




                                            5
