                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           DEC 3 1997
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    TERRY LEO TRAYNOR,

                Petitioner-Appellant,

    v.                                                    No. 96-5208
                                                    (D.C. No. 96-CV-348-C)
    FEDERAL BUREAU OF PRISONS,                            (N.D. Okla.)
    Director; UNITED STATES OF
    AMERICA; ATTORNEY GENERAL
    OF THE UNITED STATES OF
    AMERICA,

                Respondents-Appellees.




                             ORDER AND JUDGMENT *



Before KELLY, McKAY, and BRISCOE, Circuit Judges.


         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. 34.1.9. 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      This order and judgment is not binding precedent, except under the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.
      Terry Leo Traynor appeals the district court’s denial of his request for

habeas corpus relief pursuant to 28 U.S.C. § 2241. 1 On November 15, 1993,

Traynor pleaded guilty in federal court to conspiracy to commit theft from an

interstate oil pipeline. At the time of his guilty plea in federal court, he was on

parole from a suspended state sentence. After his federal plea, Traynor was

arrested for state parole violations and taken into state custody on December 23,

1993. On March 22, 1994, Traynor was delivered from state custody to federal

court pursuant to a Writ of Habeas Corpus Ad Prosequendum for sentencing on

the federal charge. The federal court sentenced Traynor to twenty-one months’

imprisonment. Following his federal sentencing, as required by the writ, Traynor

was returned to the county jail where he was being held. The Governor of

Oklahoma executed a Certificate of Parole Revocation on May 9, 1994, formally

revoking Traynor’s parole and ordering Traynor to serve the remaining portion of

his state sentence, to run concurrently with his federal sentence. Traynor is

currently in state custody serving his state sentence. A federal detainer has also


1
       Both parties to this appeal refer to 28 U.S.C. § 2255 in their briefs. The
district court does not specifically address the matter, but we assume that it
construed the petition for habeas relief as arising under § 2241, because this
action takes issue with the execution of defendant’s sentence, as opposed to the
legality of the sentence. See Bradshaw v. Story, 86 F.3d 164, 166-67 (10th Cir.
1996). We note that a certificate of appealability under the Antiterrorism and
Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214
(Apr. 24, 1996) is not required in order to appeal a final order in a proceeding
under 28 U.S.C. § 2241. See id. at 165-66.

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been filed against Traynor which will result in his being taken directly into

federal custody upon his release by Oklahoma. Traynor did not file a direct

appeal challenging either his plea or his federal sentence.

      Traynor filed a motion for habeas relief in federal district court on April

29, 1996, requesting that his federal sentence be retroactively ordered to run

concurrently with his state court sentence, or, in the alternative, that his federal

sentence be vacated or set aside because his guilty plea was involuntary. The

district court denied the writ, finding Traynor had not advised the sentencing

court that his guilty plea was conditioned on his attorney’s assurance that his

federal and state sentences would run concurrently, and, in fact, no mention

whatsoever was made of his anticipated state sentence during the plea hearing.

As an alternative basis for denial of habeas relief, the district court found that

whether Oklahoma would relinquish Traynor to federal custody was a matter

solely within the discretion and control of state officials. We affirm.

      On appeal, Traynor focuses his argument for habeas relief on the

involuntariness of his plea due to ineffective assistance of counsel. To establish

that counsel was ineffective, Traynor must show his counsel’s performance was

deficient in that it fell below an objective standard of reasonableness and that

such deficient performance prejudiced his defense. See Strickland v. Washington,

466 U.S. 668, 687-88, 691-92 (1984). Even if we accept Traynor’s account of his


                                          -3-
counsel’s assurances that his state and federal sentences would run concurrently,

we cannot conclude counsel’s advice to that effect was deficient. Traynor was

not in state custody at the time of his guilty plea. If he had been sentenced on his

federal plea before the state took him into custody, he would have been placed in

federal custody to begin serving his sentence and the Governor’s order that his

state sentence run concurrently with his federal sentence would have caused the

sentences to run concurrently. As it happened, however, Traynor had already

been taken into state custody when he was sentenced in federal court, and the

federal court was obligated to return him to state custody pursuant to the writ by

which he was delivered to federal court for sentencing. The advice given by

Traynor’s counsel was not inaccurate under the circumstances existing at the time,

and we cannot say counsel “made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”

Id. at 686.

      Traynor also argues his guilty plea was involuntary, independent of his

ineffective assistance of counsel argument. Traynor signed and filed with the

court a Petition to Enter Plea of Guilty and entered his guilty plea in open court

on the same day. There was no mention in either the written plea document or

during questioning by the court that he understood his federal and state sentences

would run concurrently. In fact, he attested both verbally and in his signed


                                         -4-
writing that his plea was not coerced in any way and was conditioned only on the

promise of the government to dismiss the remaining counts of the indictment,

which it did. The sentencing court made the proper inquiries to establish the

voluntariness of his plea and the factual basis for his plea. Traynor’s plea was,

therefore, voluntary. See Worthen v. Meachum, 842 F.2d 1179, 1184-85 (10th

Cir. 1988), overruled on other grounds by Coleman v. Thompson, 501 U.S. 722

(1991).

      Traynor also contends the district court should have given him credit on his

federal sentence for time served on his state sentence, and that requiring him to

serve his federal sentence after he completes his state sentence is cruel and

unusual punishment. We agree with the government that the court has no

authority to modify Traynor’s sentence retroactively to make it run concurrent to

the state sentence he is currently serving. See 18 U.S.C. §§ 3585 (providing

sentence commences when defendant is received into federal custody); 3582(c)

(prohibiting modification of term of imprisonment once it has been imposed,

except in circumstances not present here); and 3584 (providing multiple terms of

imprisonment imposed at different times shall run consecutively unless court

orders that terms run concurrently).




                                         -5-
The judgment of the district court is AFFIRMED.


                                          Entered for the Court

                                          Mary Beck Briscoe
                                          Circuit Judge




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