Espinoza v. Sabol , 558 F.3d 83 ( 2009 )

United States Court of Appeals
For the First Circuit
No. 08-1712
GILBERT ESPINOZA,
Petitioner, Appellant,
v.
CAROLYN A. SABOL, WARDEN OF FMC DEVENS,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy Gertner, U.S. District Judge]
Before
Lynch, Chief Judge,
Boudin and Lipez, Circuit Judges.
Timothy G. Watkins, Federal Defender Office, for appellant.
Anton P. Giedt, Assistant U.S. Attorney, with whom Michael
J. Sullivan, U.S. Attorney, was on brief for appellee.
February 27, 2009
LYNCH, Chief Judge. The primary issue raised on this
federal habeas appeal is whether an escaped prisoner can shorten
his term of actual incarceration under the common law doctrine of
credit for time erroneously at liberty because, after he was picked
up, he was inadvertently released and remained at liberty for a
period of fourteen months before he was eventually arrested again.
The district court answered this question "No," Espinoza v. Sabol,
No. 06-cv-11974-NG (D. Mass. Apr. 30, 2008), and so do we.
I.
In 1987, Gilbert Espinoza was sentenced to a term of 84
months' imprisonment for two federal drug convictions. The U.S.
Parole Commission set a presumptive parole date of January 9, 1994
for Espinoza. He never met that date while in custody and so was
not on parole. Instead, about two weeks before his presumptive
parole date, he escaped. On December 26, 1993, he walked away from
the New Mexico halfway house in which he had been serving his
sentence. At that point, more than two years of the 84-month term
remained to be served.
The Bureau of Prisons ("BOP") on January 6, 1994 found
him guilty of escape and subsequently made a recommendation to the
Parole Commission that his presumptive parole date be rescinded,
after a disciplinary hearing which Espinoza did not attend. On
January 31, 1994, the Commission reopened and "retarded" his
presumptive parole date and scheduled a rescission hearing to take
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place upon Espinoza's return to a federal institution. See 28
C.F.R. § 2.34(a) (1993). "Retard" is a term of art in the parole
context and means to postpone a presumptive parole date. See King
v. Simpson, 189 F.3d 284, 288 (2d Cir. 1999). A criminal escape
charge under 18 U.S.C. § 751(a) was also filed against Espinoza in
federal court.
Espinoza remained at liberty until June 5, 1995, when
state authorities in New Mexico arrested him for shoplifting.1
They transferred him to the custody of the U.S. Marshals Service.
Federal prosecutors declined to pursue the criminal escape charge.
The U.S. Marshals Service, rather than returning Espinoza to prison
to serve the remainder of his sentence for the 1987 drug crimes,
mistakenly released him from custody on June 7, 1995. Although the
record is not clear, the Marshals seem to have booked Espinoza
incorrectly -- Espinoza, whose full name is Gilbert Espinoza-Saenz,
was apparently misidentified as Gilbert Espinoza-Sanchez, a man of
approximately the same age with a social security number similar to
Espinoza's and who was not subject to a prison sentence at the
time.
Fourteen months later, on August 6, 1996, Espinoza was
arrested again, this time on new federal drug charges. In federal
court in New Mexico, he pled guilty and was sentenced to a term of
1
Espinoza concedes that he cannot obtain sentence credit
for the period between December 26, 1993 and June 5, 1995.
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151 months' imprisonment on March 10, 1997. The sentencing court
was aware of Espinoza's prior sentence -- Espinoza's pre-sentence
report noted that he had time remaining on his 1987 sentence and
that he had committed his new offense after escaping. The court
was not explicit as to whether Espinoza's new sentence should run
concurrently with his 1987 sentence or whether they should run
consecutively.
Upon Espinoza's return to custody and after a hearing on
August 14, 1997, the BOP found him guilty of escape. The Parole
Commission rescinded Espinoza's presumptive parole date on April
21, 1998 on the basis of this finding, as well as based on his new
conviction. The BOP then calculated Espinoza's period of
incarceration, concluding that he had to serve the remainder of his
1987 sentence with credit for periods that he spent in custody,
including the period of June 5-7, 1995. Because the New Mexico
federal district court had been silent as to whether Espinoza's new
sentence would be served concurrently or consecutively with the
1987 sentence, the BOP decided the question and concluded that the
sentences were consecutive. The result was that Espinoza served
the remainder of his 1987 sentence from August 6, 1996 to January
10, 1999 and began serving his 1997 sentence immediately
thereafter.
Espinoza filed a pro se petition for habeas relief under
28 U.S.C. § 2241 in Massachusetts federal court, alleging that the
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BOP had erred in calculating his period of incarceration and was
requiring him to serve time on the dismissed escape charge. The
court appointed counsel, who reframed the issues. In a
supplemental pleading, Espinoza argued that he was entitled to
credit against his sentence for the time he spent at liberty
between June 7, 1995 and August 6, 1996 and that the BOP had erred
in determining that his two sentences were to run consecutively.
On April 30, 2008, the district court granted the
government's motion to dismiss, holding that the June 5-7, 1995
detention did not recommence his sentence and thus did not trigger
the time at liberty doctrine and that the BOP had correctly
determined that Espinoza's sentences were to run consecutively.
The court concluded that the Parole Commission had erred in not
holding a rescission hearing within 90 days of Espinoza's return to
federal custody, see 28 C.F.R. § 2.34(a), but that this error did
not entitle Espinoza to additional sentence credit.
II.
A. The Doctrine of Credit for Time Erroneously at Liberty
Espinoza argues he should be given credit against his
sentence for the time he spent erroneously at liberty. Espinoza's
argument is that because the U.S. Marshals Service erred (by
confusing him with a similarly named person with a like social
security number) in releasing him on June 7, 1995, he should be
given credit through August 6, 1996, the date of his next arrest,
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toward his sentence. He says it was not his fault he was released
on June 7, 1995, but the government's, and so his final release
date should have been October 28, 2008 and not December 26, 2009.
The length of the term of actual imprisonment to be
served following a criminal conviction and sentence is subject to
various constitutional and other legal restraints, both as to
increases and as to decreases of the time in confinement. For
example, an increase in sentence after a defendant has begun to
serve his sentence may contravene the constitutional prohibition
against double jeopardy. Breest v. Helgemoe, 579 F.2d 95, 99 (1st
Cir. 1978). However, if the original sentence was erroneous, the
Constitution contains no general rule prohibiting a court from
finding that sentence erroneous and holding that a sentence of
greater length was required by law. DeWitt v. Ventetoulo, 6 F.3d
32, 34 (1st Cir. 1993).
As to a claimed decrease in time of incarceration,
substantive due process may prohibit the continued incarceration of
a prisoner under certain facts. The substantive component of the
Due Process Clause is violated by executive action "when it 'can
properly be characterized as arbitrary, or conscience shocking, in
a constitutional sense.'" County of Sacramento v. Lewis, 523 U.S.
833, 847 & n.8 (1998) (quoting Collins v. City of Harker Heights,
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503 U.S. 115, 128 (1992));2 see also United States v. Acosta-
Martinez, 252 F.3d 13, 21 (1st Cir. 2001) ("When testing executive
action, the Supreme Court has used the 'shocking to the conscience'
test."); DeWitt, 6 F.3d at 35. Most cases in which a prisoner
seeks credit for his time at liberty involve some form of
constitutional due process claim.3 While we have not explicitly
addressed such a claim, we have recognized that in the "extreme
case" -- based on a number of factors -- sentence revision may
"cross[] the line" and violate due process; and our rationale could
conceivably apply to a time at liberty constitutional claim. See
DeWitt, 6 F.3d at 34-36. But this is not an extreme case, and
2
"[The] criteria to identify what is fatally arbitrary
[under the Due Process Clause] differ depending on whether it is
legislation or a specific act of a governmental officer that is at
issue." Lewis, 523 U.S. at 846. The alternate formulation of the
test usually applied to legislative action is whether the conduct
violates a fundamental right or liberty implicit in the prisoner's
due process rights. Washington v. Glucksberg, 521 U.S. 702, 719-21
(1997). No court has held that a prisoner has a fundamental right
to remain free after he has been released erroneously, and some
have flatly rejected the claim. See, e.g., Hawkins v. Freeman, 195
F.3d 732, 747 (4th Cir. 1999) (en banc).
3
Some circuits have addressed a due process theory that a
state waives its jurisdiction when it delays executing a sentence.
Bonebrake v. Norris, 417 F.3d 938, 941-44 (8th Cir. 2005)
(rejecting claim based on four years' delay by a state in
imprisoning petitioner). Others have used the theory that the
government is constitutionally estopped from reincarcerating the
petitioner. Green v. Christiansen, 732 F.2d 1397, 1399 (9th Cir.
1984). The Ninth Circuit has treated similar arguments in a case
involving erroneous release on parole under a non-constitutional
equitable estoppel theory. Johnson v. Williford, 682 F.2d 868 (9th
Cir. 1982). Other courts have approached similar questions as
constitutional ones of implied pardon or commutation. See, e.g.,
Shields v. Beto, 370 F.2d 1003 (5th Cir. 1967).
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appropriately Espinoza does not make any claims to release based on
a constitutional provision. We will assume, in Espinoza's favor,
that he may seek relief even when no due process claim is stated.
In the federal criminal justice system, mechanisms for
granting credits that can be used to adjust time served have been
largely set by legislation. For example, 18 U.S.C. § 3585(b)
specifies that a defendant convicted of a federal crime has a right
to receive credit for certain time spent in official detention
before his sentence begins. That credit is determined by the
Attorney General, not by a court. See United States v. Wilson, 503
U.S. 329, 334-35 (1992). In the Sentencing Reform Act of 1984,
Congress, with few exceptions, abolished parole, which eliminated
one mechanism for allowing prisoners credit to reduce their time
served. Prisoners may now receive credit only in carefully
circumscribed situations, such as for their good behavior while
incarcerated.4 See, e.g., 18 U.S.C. § 3624(b) (allowing grant of
credit toward the service of a sentence for satisfactory behavior).
The relationship between the release date and credits to be given
for satisfactory behavior is set forth in 18 U.S.C. § 3624. See
Perez-Olivo v. Chavez, 394 F.3d 45, 47 & n.1 (1st Cir. 2005).
Although Congress could have codified some program of credit for
4
Further, Fed. R. Crim. P. 35 permits a judge, on motion
of the prosecution, to reduce a sentence for specified reasons,
such as post-conviction cooperation and substantial assistance to
the prosecution.
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persons erroneously released, it has not done so. Espinoza's claim
to early release is not based on any statute.
Congress's strong interest in federal sentences raises
other considerations, which interact with the claim Espinoza makes.
Espinoza's argument raises a concern about the allocation of power
over the length of actual imprisonment between the federal judicial
branch and the executive branch. See Wilson, 503 U.S. at 335-36.
By definition, arguments such as Espinoza's are presented to courts
when the executive branch officials, exercising whatever discretion
has been allotted to them, have decided not to give the prisoner
the credits he seeks.
Second, concerns may be raised about whether the asserted
federal common law doctrine alone survives the Sentencing Reform
Act of 1984. See G.J. Chin, Getting Out of Jail Free: Sentence
Credits for Periods of Mistaken Liberty, 45 Cath. U. L. Rev. 403,
404 (1996). The answer to that question is neither briefed to us
nor necessary to our conclusion. Application of the common law
doctrine, however, may not be divorced from the overall purposes
for sentencing set by Congress in the 1984 Sentencing Reform Act.
These purposes include the need for "uniformity, honesty, and
proportionality." United States v. O'Neil, 11 F.3d 292, 297 n.4
(1st Cir. 1993); see also S. Rep. No. 98-225, at 50-60, reprinted
in 1984 U.S.C.C.A.N. 3182, 3233-43 (listing statutory goals
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including comprehensiveness and consistency, elimination of
sentencing disparity, and certainty in release dates).
Espinoza's claim is based entirely on the common law
"time at liberty" doctrine.5 We will assume the federal common law
doctrine still has vitality, despite its lack of legislative
recognition. The federal doctrine was apparently first articulated
in 1930 in White v. Pearlman, 42 F.2d 788 (10th Cir. 1930). Judge
Posner, in Dunne v. Keohane, 14 F.3d 335 (7th Cir. 1994), set forth
a core purpose of the doctrine:
The government is not permitted to play cat
and mouse with the prisoner, delaying
indefinitely the expiation of his debt to
society and his reintegration into the free
community. Punishment on the installment plan
is forbidden.
Id. at 336. In this view, the doctrine is "only a rule of
interpretation, . . . an attempt laden with considerations of
policy, to divine the will of the legislature." Id. at 337; see
also Boston v. Att'y Gen., 210 F. App'x 190, 193 & n.2 (3d Cir.
2006) (per curiam) ("[W]here the danger animating the rule is not
present, the common law rule need not be inflexibly applied."). We
agree that the doctrine is not a general criminal equity doctrine,
to be exercised at the discretion of federal courts.
5
This court has never published an opinion on the
doctrine. Some form of the issue was raised in one case, which was
settled by an agreement that the defendant would receive credit
against his sentence for more than 13 months. See United States v.
Nickens, No. 94-1861, 1995 WL 314483 (1st Cir. April 14, 1995).
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The situations the doctrine was designed to encompass
have been variously explained. Some courts, most notably the Fifth
and Seventh Circuits, have indicated that it should be applied only
where "the government is trying to delay the expiration of the
defendant's sentence." Dunne, 14 F.3d at 337; see Bintzler v.
Gonzales, 239 F. App'x 271, 275 (7th Cir. 2007) (finding the
doctrine "of dubious application where the government has not
intentionally sought to delay . . . imprisonment") (emphasis
added); Free v. Miles, 333 F.3d 550, 554 (5th Cir. 2003) (stressing
that the doctrine's "sole purpose is to prevent the government from
abusing its coercive power to imprison a person by artificially
extending the duration of his sentence through releases and
reincarcerations").
Other courts have focused instead on the right of the
prisoner "to re-establish himself and live down his past" and have
therefore applied the doctrine where a prisoner is discharged
without fault regardless whether the government's discharge was
intentional or negligent. White, 42 F.2d at 789; see also United
States v. Greenhaus, 89 F.2d 634, 635 (2d Cir. 1937) (per curiam).
The most recent court to adopt and expand upon the latter view is
the Third Circuit. Vega v. United States, 493 F.3d 310, 319 (3d
Cir. 2007) (adopting a burden-shifting framework whereby, once the
prisoner shows he has been released with unserved time remaining on
his sentence, "the burden shifts to the government to prove either
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(1) that there was no negligence on the part of the imprisoning
sovereign, or (2) that the prisoner obtained or retained his
liberty through his own efforts").6
Espinoza urges adoption of the Vega burden-shifting
framework, claiming he is entitled to a presumption of credit based
on his showing that he was released despite having time remaining
on his sentence; therefore, the burden shifts to the government to
negate negligence or show he was at fault. We need not decide
whether negligence might, in certain situations and in combination
with other factors, suffice to trigger the doctrine. However, our
view is quite different than the Third Circuit's, both as to the
allocation of burdens and as to the role given negligence
simpliciter.
In our view, the burden of proof under § 2241 is on the
prisoner Espinoza, as it is on other prisoners in § 2241 cases.
Espinoza's claim is that he has a right to be released upon the
grounds that the sentence was imposed in violation of law. The
burden of proof of showing deprivation of rights leading to
unlawful detention is on the petitioner.7 Walker v. Johnston, 312
6
Even under the broader view, the doctrine is not a broad
discretionary criminal equity doctrine but takes into account
society's interest in having prisoners serve their sentences, the
need to avoid intentional abuses of government power, and the
impact on a prisoner who has genuinely started a new life.
7
On a federal habeas petition, there is also a presumption
of regularity of the sentence, which the petitioner must overcome.
Daniels v. United States, 532 U.S. 374, 381 (2001); Johnson v.
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U.S. 275, 286 (1941); see also Waddington v. Sarausad, 129 S. Ct.
823, 831 (2009); Smith v. Robbins, 528 U.S. 259, 285-86 (2000);
Bader v. Warden, 488 F.3d 483, 488 (1st Cir. 2007).
As to the use of negligence in evaluating the claim, we
will assume the government was negligent in releasing Espinoza.
Indeed, it strikes us that in virtually every case in which there
was a mistaken release of a prisoner there will have been some form
of government negligence. The degree of negligence and, indeed,
whether there was intentional error by the government may be highly
relevant considerations, but do not shift any burdens. There are
other legal reasons for this. Courts must be cautious in
approaching federal common law. See Atherton v. FDIC, 519 U.S.
213, 225-26 (1997) (requiring significant conflict with or threat
to federal interest before allowing creation of federal common
law); Mauser v. Raytheon Co. Pension Plan for Salaried Employees,
239 F.3d 51, 57 (1st Cir. 2001) (stressing the need to "exercise
caution in creating new common law rules" under ERISA).
In addition, practical concerns support our view. The
BOP releases about 41,000 inmates a year; all U.S. correctional
systems combined release about 630,000 inmates a year. D. Wall, A
Game of Cat and Mouse -- or Government and Prisoner: Granting
Relief to an Erroneously Released Prisoner in Vega v. United
Zerbst, 304 U.S. 458, 468 (1938); Lema v. United States, 987 F.2d
48, 51 (1st Cir. 1993); cf. United States v. Butt, 731 F.2d 75, 80
(1st Cir. 1984) (motion to vacate sentence).
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States, 53 Vill. L. Rev. 385, 386 n.9 (2008). One court has noted
that erroneous releases are frequent, and thus not so uncommon as
to raise an issue of executive branch arbitrariness. Hawkins, 195
F.3d at 742.
Petitioner argues that a broad understanding of the at
liberty doctrine is necessary as a deterrent to mistakes being made
by the executive. That deterrence rationale is flawed; we doubt
very much that bureaucratic mistakes of the sort made here would be
in the least deterred. The U.S. Marshals service has no incentive
to release prisoners contrary to rules. Cf. Herring v. United
States, 129 S. Ct. 695, 700 (2009) (noting that Fourth Amendment
exclusionary rule is meant to apply only where necessary to deter
future governmental misconduct).
In the end, we need not define the outer reaches of the
doctrine. We hold that Espinoza has not met his burden of showing
that the at liberty doctrine applies in this case. We acknowledge
that Espinoza does not seek credit for his entire time at liberty
but only for that time following his mistaken release. Still, the
erroneous release happened only because Espinoza had earlier
escaped from his halfway house and this caused the need to process
him again when he was first apprehended. Espinoza created the
situation. But for his escape, the issue would not have arisen.
There was no intent by the government to string out the time
Espinoza had to serve; this is plainly not a case of punishment of
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the prisoner on the installment plan. There is not the slightest
hint in the record that the mistake was motivated by a desire to
single out Espinoza or by any improper motive. Nor was there
arbitrariness or capriciousness by any government actor. At most
there was a mistake; mistakes are simply part of life.
The at liberty doctrine, even in its broader incarnations
among the circuit courts, was never meant to reward prisoners for
escaping. At common law, an escaped prisoner could not have
received credit for the time he was at large, and there must not
have been any contributing fault on his part. See White, 42 F.2d
at 789. A doctrine meant to protect against government abuses of
prisoners through cat and mouse games of imprisonment cannot be
turned into a game of catch me if you can.
The district court's rejection of the doctrine in this
case is affirmed.
B. Other Arguments
Espinoza also claims he is entitled to immediate release
because the BOP erred in determining that his 1987 and 1997
sentences were to run consecutively. Thus, his § 2241 petition
before the district court also challenged that BOP determination.
The initial question is one of the appropriate standards
of review. Our review of the district court's rejection of his
habeas claim is de novo. See Teti v. Bender, 507 F.3d 50, 56 (1st
Cir. 2007). Most circuits consider that the district court's
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review of a BOP decision about credits is for abuse of discretion.
See, e.g., Fegans v. United States, 506 F.3d 1101, 1105 (8th Cir.
2007); Bintzler, 239 F. App'x at 275-76; see also United States v.
White, 91 F. App'x 162, 163 (1st Cir. 2004) (per curiam) (noting
that the discretion to credit time served is vested in the Attorney
General, through the BOP). We need not resolve the latter
standard.
Whether multiple terms of imprisonment are consecutive or
concurrent is governed by 18 U.S.C. § 3584(a), which states:
If multiple terms of imprisonment are imposed
on a defendant at the same time, or if a term
of imprisonment is imposed on a defendant who
is already subject to an undischarged term of
imprisonment, the terms may run concurrently
or consecutively . . . . Multiple terms of
imprisonment imposed at different times run
consecutively unless the court orders that the
terms are to run concurrently.
The district court concluded that because the 1987 and 1997
sentences were imposed at different times, Espinoza was subject to
the statutory presumption that the sentences were to run
consecutively. It held that Espinoza had offered nothing to rebut
the presumption.
On appeal, Espinoza argues that, because he had only two
weeks remaining on his 1987 sentence at the time of his escape, the
BOP could only credit two weeks of the time he spent in custody
between his August 6, 1996 arrest and his March 10, 1997 sentencing
to that sentence. See 18 U.S.C. § 3585(b)(1). He argues from this
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he was not "already subject to an undischarged term of
imprisonment" within the meaning of § 3584(a), and thus the
statutory presumption that his terms were consecutive did not
attach.
Espinoza reaches this conclusion on the basis of his
erroneous view that his presumptive parole date of January 9, 1994
remained effective until the Parole Commission officially rescinded
it on April 21, 1998. The record is directly contrary. Espinoza
escaped from custody before reaching his presumptive parole date
and that parole date was retarded. Thus, he was not on parole and
remained subject to the undischarged term of his sentence.
When the Parole Commission reopened and retarded his
presumptive parole date in January 1994, it also scheduled a
rescission hearing upon Espinoza's return to a federal institution.
See generally 28 C.F.R. § 2.34(a) (1993).8 Because Espinoza never
8
Espinoza's argument is incorrect that the Parole
Commission violated a regulatory requirement that it hold a
rescission hearing within 90 days of his return to federal custody.
The 90-day provision applies only to decisions to reopen and retard
parole made without a hearing. See 28 C.F.R. § 2.34(a) (1993).
Because Espinoza committed new criminal behavior (the escape), he
was subject to a separate provision of § 2.34(a) under which a
rescission hearing was scheduled for him "on the first docket
following [his] return to a federal institution." Id.; see also
U.S. Parole Comm'n, Rules & Procedures Manual 115, available at
http://www.usdoj.gov/uspc/rules_procedures/uspc-manual111507.pdf.
Regardless of the length of the delay, Espinoza cannot show he was
prejudiced by it and thus it cannot serve as the basis for habeas
relief. Cf. White v. Hubbard, No. 95-1750, 1996 WL 86190, at *1
(1st Cir. Feb. 29, 1996) (per curiam) (discussing delay in parole
revocation hearing); see also Tippins v. Luther, 869 F. Supp. 331,
337 (W.D. Pa. 1994). Espinoza was not prejudiced because the delay
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reached his presumptive parole date before he escaped and because
the Parole Commission reopened and retarded his parole date before
he was able to serve the time remaining on his sentence, he
remained subject to his undischarged prison term. He was serving
that sentence, which had approximately 22 months remaining
factoring in good time credit, when the New Mexico federal district
court sentenced him in March 1997. The BOP so concluded.
Espinoza was subject to the presumption in § 3584(a) that
his 1997 sentence was to be served consecutively to his 1987
sentence. He has provided nothing to defeat that presumption.
III.
We affirm the district court's order dismissing
Espinoza's habeas corpus petition under 28 U.S.C. § 2241.
had no effect on his ability to present a defense or on the length
of his resulting sentence.
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