Hughes v. Oliver , 596 F. App'x 597 ( 2014 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 15, 2014
Elisabeth A. Shumaker
Clerk of Court
JERRY LOUIS HUGHES,
Petitioner - Appellant,
v. No. 14-1297
(D.C. No. 1:14-CV-01442-LTB)
JOHN OLIVER, Warden, (D. Colo.)
USP Florence-High,
Respondent - Appellee.
ORDER AND JUDGMENT*
Before HOLMES, BACHARACH, and McHUGH, Circuit Judges.
Jerry Louis Hughes, a federal inmate proceeding pro se, appeals the dismissal
of his 28 U.S.C. § 2241 petition, claiming his due process rights were violated when
he was mistakenly released from custody and reincarcerated after spending almost a
year at liberty. Mr. Hughes also contends the government should be estopped from
*
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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
enforcing the remainder of his sentence. We have jurisdiction under 28 U.S.C.
§ 1291 and affirm the dismissal of Mr. Hughes’ habeas petition.
I
On October 4, 2004, Mr. Hughes was sentenced to 135 months in prison after
pleading guilty to armed bank robbery and associated offenses. The government
appealed that sentence, and on January 30, 2006, Mr. Hughes was resentenced to 346
months in prison. Thereafter, according to Mr. Hughes, prison officials repeatedly
informed him that he would be released in 2012 and, consistent with that
representation, released him on May 14, 2012. But a year later, on May 29, 2013,
Mr. Hughes appeared at a supervised-release revocation hearing and was told that he
had been released by mistake. He was remanded to federal custody and continues to
serve out the remainder of his sentence.
In his habeas petition, Mr. Hughes claims the government violated his due
process rights and should be equitably estopped from enforcing the rest of his
sentence. The district court dismissed the petition, however, ruling that these
arguments were foreclosed by White v. Pearlman, 42 F.2d 788, 789 (10th Cir. 1930),
which acknowledged the government’s power to recommit a mistakenly released
inmate whose sentence would not have expired if he had remained in confinement.
The district court concluded that since Mr. Hughes’ sentence would not have expired
during the year he had been mistakenly released from custody, there was no
constitutional violation. The court also observed that Mr. Hughes could have sought
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credit for the time he spent at liberty, but he did not request that relief; instead, he
simply requested to be released altogether.
On appeal, Mr. Hughes maintains that his due process rights were violated and
the government should be estopped from enforcing the rest of his sentence. We
review the dismissal of Mr. Hughes’ habeas petition de novo, see Weekes v. Fleming,
301 F.3d 1175, 1176-77 (10th Cir. 2002), and find both arguments unavailing.
II
A. Due Process
Mr. Hughes’ due process claim is premised on executive action of government
officials. Such action violates due process “‘when it can properly be characterized as
arbitrary, or conscience shocking, in a constitutional sense.’” Espinoza v. Sabol,
558 F.3d 83, 87 (1st Cir. 2009) (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833,
847 & n.8 (1998)). At least one court has observed that mistaken releases resulting
in reincarceration occur “too frequently . . . to raise any presumption of arbitrariness
in the constitutional sense,” Hawkins v. Freeman, 195 F.3d 732, 744 (4th Cir. 1999)
(en banc) (internal quotation marks omitted); see also Vega v. United States,
493 F.3d 310, 317 (3d Cir. 2007) (finding no due process violation based on
erroneous release and reincarceration, and looking to common law for right to credit
for time spent erroneously at liberty). Indeed, we recognized long ago that “[t]here is
no doubt of the power of the government to recommit a prisoner who is released or
discharged by mistake, where his sentence would not have expired if he had remained
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in confinement.” White, 42 F.2d at 789. Mr. Hughes’ sentence would not have
expired if he had remained in confinement, and thus his due process rights were not
implicated when the government recommitted him.
Nevertheless, Mr. Hughes insists that the government’s apparent negligence
justifies his release. He cites cases evaluating whether there was government “action
‘so affirmatively wrong or [] inaction so grossly negligent that it would be
unequivocally inconsistent with fundamental principles of liberty and justice to
require a legal sentence to be served in the aftermath of such action or inaction.’”
Johnson v. Williford, 682 F.2d 868, 873 (9th Cir. 1982) (quoting Piper v. Estelle,
485 F.2d 245, 246 (5th Cir. 1973) (per curiam)). The problem with this argument,
however, is that the standard that Mr. Hughes relies upon “fails to embody the full
stringency of the [Lewis] standard’s requirement that to be ‘conscience-shocking,’
‘arbitrary in the constitutional sense,’ an executive act must be not only ‘wrong,’ but
egregiously so by reason of its abusive or oppressive purpose and its lack of
justification by any government interest.” Hawkins, 195 F.3d at 744 (citing Lewis,
523 U.S. at 844-54).
Mr. Hughes alleges that he was mistakenly released after prison officials gave
him incorrect information that he would be released in 2012. While this conduct may
suggest negligence, it does not manifest the type of conscience-shocking action
necessary to sustain his claim. See Espinoza, 558 F.3d at 90 (holding that
government mistake was “simply part of life” and did not suggest any “arbitrariness
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or capriciousness by any government actor”). Thus, Mr. Hughes cannot prevail on
his due process claim.
B. Estoppel
Mr. Hughes also contends the government should be equitably estopped from
enforcing the rest of his sentence. To prevail on this claim, Mr. Hughes must satisfy
the traditional elements of estoppel and also show “affirmative misconduct on the
part of the government; mere erroneous advice will not do.” Wade Pediatrics v.
Dep’t of Health & Human Servs., 567 F.3d 1202, 1206 (10th Cir. 2009) (internal
quotation marks omitted).1 On this score, Mr. Hughes’ claim fails because there was
no affirmative government misconduct here. Mr. Hughes alleges only that he was
given erroneous advice at his unit-team meetings, “which is . . . insufficient to
warrant estoppel against the government.” Id. at 1207; see also Heckler v. Cmty.
Health Servs. of Crawford Cnty., Inc., 467 U.S. 51, 64 (1984) (“The fact that [the
government agent’s] advice was erroneous is, in itself, insufficient to raise an
estoppel . . . .”). But see Johnson v. Williford, 682 F.2d 868, 872-73 (9th Cir. 1982)
1
The traditional elements of estoppel are:
(1) the party to be estopped must have known the facts; (2) that party
must have intended that its conduct would be acted on or must have
acted such that the party asserting estoppel had a right to believe it was
so intended; (3) the asserting party must have been ignorant of the true
facts; and (4) the asserting party must have relied on the other party’s
conduct to his injury.
Wade Pediatrics v. Dep’t of Health & Human Servs., 567 F.3d 1202, 1206 (10th Cir.
2009).
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(holding, without discussing separate element of government misconduct, that
government was estopped from revoking parole of inmate who was incorrectly
advised at eight administrative reviews that he was eligible for parole). Accordingly,
Mr. Hughes cannot show that the government should be estopped from enforcing the
rest of his sentence.
C. Possibility of a Credit for Time Spent Erroneously at Liberty
Finally, it may be that Mr. Hughes is entitled to a credit on his sentence under
the common law doctrine of time spent erroneously at liberty. See White, 42 F.2d
at 789 (“A sentence of five years means a continuous sentence, unless interrupted by
escape, violation of parole, or some fault of the prisoner, and he cannot be required to
serve it in installments.”). But because Mr. Hughes does not raise that issue, we do
not decide it. Mr. Hughes asserts that the government should be precluded from
enforcing the rest of his sentence, and White forecloses that possibility.
III
The judgment of the district court is affirmed. Mr. Hughes’ motion to proceed
on appeal in forma pauperis is denied.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
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