Opinion
No. CR 01-1226 BB.
April 27, 2005
ORDER
THIS MATTER comes before the Court on Defendant's motion to correct errors in the record under Fed.R.Crim.P. 36 (Doc. 38). Defendant seeks an order correcting the judgment of conviction and ordering the Bureau of Prisons ("BOP") to credit certain time against his sentence.
No relief can be granted under Rule 36, which allows for correction of clerical mistakes in the record at any time. Defendant does not assert a clerical error; his claim is that his judgment does not indicate whether his two sentences are concurrent or consecutive. This claim may not be adjudicated under Rule 36. See Azure v. Gallegos, No. 03-1375, 2004 WL 613840, at **3 (10th Cir. Mar. 26, 2004) (rejecting claim as unavailable under Rule 36 for alleged error regarding consecutive sentence); see also United States v. Hayden, No. 00-3343, 2001 WL 280046, at **2 (10th Cir. Mar 21, 2001). The rule permits "correction in the formal record of a gap or error `arising from oversight or omission.'" Pattiz v. Schwartz, 386 F.2d 300, 303 (8th Cir. 1968) (analyzing claim under Fed.R.Civ.P. 60(a)), cited in United States v. Morales, 108 F.3d 1213, 1224 (10th Cir. 1997); and see United States v. Werber, 51 F.3d 342, 347, 348 and n. 16 (2d Cir. 1995) (Rule 36 allows the court to correct transcription errors, but not "error[s] of law"), cited in United States v. Blackwell, 81 F.3d 945, 949 (10th Cir. 1996). "[A] `clerical mistake' should appear on the face of the record, leaving little need for adversary proceedings to clarify the issue." Werber, 51 F.3d at 347. Defendant asserts an error of law, and the relief sought under Rule 36 will be denied.
IT IS THEREFORE ORDERED that Defendant's motion to correct errors in the record under Fed.R.Crim.P. 36 (Doc. 38) filed March 22, 2005, is DENIED.