                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                          JUL 9 2003
                          FOR THE TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                                Clerk

 WILLIE CORNELIUS FRANKLIN,
 suing as: Willie C. Franklin,

              Petitioner-Appellant,

 v.                                                     No. 02-5129
                                                  (D.C. No. 02-CV-477-C)
 UNITED STATES OF AMERICA;                              (N.D. Okla.)
 MARVIN MORRISON, Warden,

              Respondents-Appellees.


                           ORDER AND JUDGMENT


Before TACHA , Chief Judge, BRORBY , Senior Circuit Judge, and        HARTZ ,
Circuit Judge.



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

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 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. 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.
       Willie Cornelius Franklin, a federal inmate housed in a correctional facility

in Arkansas, appeals the district court’s decision denying his habeas petition

under 28 U.S.C. § 2241. The petition challenges the manner in which state and

federal authorities have executed his federal sentence for drug trafficking. We

review the district court’s decision      de novo . See, e.g., Weekes v. Fleming , 301

F.3d 1175, 1176-77 (10th Cir. 2002),         cert. denied , 123 S. Ct. 950 (2003).

Because a § 2241 petition challenges the execution, rather than the validity, of a

sentence, however, Franklin had to file his § 2241 petition in the district in which

he is confined.    See, e.g., Haugh v. Booker , 210 F.3d 1147, 1149 (10th Cir. 2000).

The Oklahoma district court therefore did not have jurisdiction to decide

Franklin’s § 2241 petition.       See United States v. Scott , 803 F.2d 1095, 1096 (10th

Cir. 1986) (per curiam).

       Such “[j]urisdictional 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 such an action if the transfer

is in the interest of justice.”    Haugh , 210 F.3d at 1150 (internal quotation marks

omitted). “Nonetheless, . . . a court is authorized [first] 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. (internal quotation marks omitted).   “[O]ur quick


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look at the merits” of Franklin’s § 2241 claim “convinces us” that it lacks merit.

Id.

       In 1998, while Franklin was in Oklahoma custody on state charges, the

United States indicted him on federal drug trafficking charges. Franklin appeared

in federal court on those drug charges pursuant to a writ of habeas corpus

ad prosequendum. After he pleaded guilty to one drug trafficking count, the

federal court sentenced Franklin to 120 months’ imprisonment. Federal

authorities then returned Franklin to state custody, where he pleaded guilty to a

state assault and battery charge. The state court sentenced Franklin to ten years’

imprisonment on that conviction, and specified that the state sentence would run

concurrently with the federal sentence. Nonetheless, Franklin remained in state

custody until he completed serving that state sentence. Only then did Oklahoma

officials transfer him to federal custody. In his § 2241 petition Franklin now

challenges the refusal to credit against his federal sentence the time he served in

state prison on his state sentence.

       “The sovereign that first acquires custody of a defendant in a criminal case

is entitled to custody until it has exhausted its remedy against the defendant.”

Weekes , 301 F.3d at 1180. Further, the sovereign having custody determines

whether to retain or surrender that custody.         See, e.g., Gee v. Kansas , 912 F.2d

414, 417 (10th Cir. 1990). Although Franklin did appear in federal court pursuant


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to a writ of habeas corpus ad prosequendum on the federal drug charges,

Oklahoma still retained primary custody of him.    See, e.g., Weekes , 301 F.3d

at 1180. Franklin’s federal sentence never began until he was finally received

into federal custody to serve his federal drug trafficking sentence, after

completing his state sentence.   See 18 U.S.C. § 3585(a); Hayward v. Looney ,

246 F.2d 56, 58 (10th Cir. 1957). He is not entitled to credit against his federal

sentence for time spent in state prison prior to the commencement of his federal

sentence. See Bloomgren v. Belaski , 948 F.2d 688, 691 (10th Cir. 1991).

      Because Franklin’s claim lacks merit, we decline to transfer his case. Nor

do we need to address whether Franklin was entitled to a sentencing hearing

transcript to assist him in pursuing his § 2241 claim.

      Because the district court did not have jurisdiction to consider Franklin’s

§ 2241 petition, we VACATE the judgment of the United States District Court for

the Northern District of Oklahoma, and REMAND this cause to that court with

directions to dismiss Franklin’s § 2241 petition without prejudice to his

reasserting it in the proper forum.


                                                     Entered for the Court



                                                     Harris L Hartz
                                                     Circuit Judge


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