Lee Norman CLARK, Petitioner-Appellant, v. Clifton E. FLOYD, Warden, FCI Phoenix, Respondent-Appellee , 80 F.3d 371 ( 1996 )

CANBY, Circuit Judge.

I.

Lee Norman Clark filed a petition for ha-beas corpus under 28 U.S.C. § 2241 in district court. The district court denied Clark’s petition on the merits, and Clark appeals. He contends that time spent in state custody and at large after his release from state custody should be credited against his federal sentences. Because we agree that the time spent after release should be credited, we reverse the district court’s denial of Clark’s petition.

II.

In 1983, Clark was convicted in district court of federal drug offenses. The district court sentenced Clark to two five-year prison terms and a five-year term of probation, all of which were to run consecutively. After sentencing, Clark was released on bond pending appeal. The court ordered that the probationary term commence at that time.

While on that probation, Clark was arrested in Montana on state charges of manufacturing methamphetamine. Clark was placed in state custody that day. He was convicted in Montana state court and began serving his state sentence of 40 years in state prison-.

Subsequently, the federal court issued a writ of habeas corpus ad prosequendum, under which Clark was delivered to the federal court for a probation revocation hearing. On November 1, 1984, the district court revoked Clark’s probation because of his Montana conviction, and sentenced him to a third five-year prison term to run- consecutively to the other two federal five-year terms. The Judgment and Probation/Commitment Order states that pursuant to the court’s judgment “[t]he defendant is hereby committed to the custody of the Attorney General or his authorized representative for imprisonment for a period of five (5) years.... ” The marshal returned Clark to Montana prison authorities on December 3,1984, so that he could continue serving his Montana sentence. By that time, the marshal had sent the Montana State Prison’s Records Office a detainer directing it to notify the marshal when Clark was released from state prison, so that he could be taken into federal custody to begin serving his federal sentence. The Montana State Prison Warden acknowledged receipt of the detainer and agreed to comply with it.

On November 27,1989, Clark was released on parole by Montana prison authorities. The Montana authorities failed to inform the United States Marshal of Clark’s release. Nearly three years later, federal authorities learned of Clark’s release, and took him into federal custody on August 18, 1992, to begin serving his three consecutive federal five-year sentences computed from that date. Clark then brought this petition for habeas corpus.

III.

Credit commencing November 1, 198k.

Clark first argues that he should be given credit from November 1, 1984, the date on which the district court revoked his probation and added five years to his sentence. Clark contends that when the district court revoked his probation and added five years to his federal prison sentence, it intended Clark to begin serving his federal sentence immediately rather than to return to the Montana prison. Clark points out that the district court’s Judgment and Commitment Order contains a preprinted paragraph stating that pursuant to the judgment “[t]he defendant is hereby committed to the custody of the Attorney General or his authorized representative for imprisonment for a period of five (5) years_” Clark asserts that the marshal violated the district court order by returning him to the Montana State Prison rather than delivering him to a federal penitentiary. Therefore, he argues, he should be given credit toward his federal sentence from November 1,1984, onward.

We reject Clark’s argument. It is true that we have held that an order directing a defendant to be delivered “forthwith” to federal authorities starts- federal time running when the marshal fails to follow the order. Smith v. Swope, 91 F.2d 260, 261 (9th Cir.1937). But the court’s order here differed from that in Smith. It did not specify that Clark was to begin serving his federal sentence forthwith rather than to return to state prison to continue serving his state sentence. The language of Clark’s Order is similar to that of the petitioner’s order in Thomas v. Whalen, 962 F.2d 358 (4th Cir.1992), a case arising out of similar circumstances. In Thomas, the petitioner’s order stated that he was “hereby committed to the custody of the Attorney General or his authorized representative for imprisonment.” Id. at 362. The court noted that Thomas’ commitment order was preprinted and only ordered Thomas committed to the Attorney General “for the purpose of imprisonment, but it did not purport to commit him immediately to prison.” Id. Thus, the court held, the marshal properly interpreted the order when he returned the petitioner to state prison to continue serving his state sentence.

We agree with the Fourth Circuit’s reasoning in Thomas and apply it here. The marshal correctly interpreted the district court’s order when he returned Clark to the Montana prison after his second federal sentencing. Because the district court’s order did not require immediate federal commitment, Clark did not begin to serve his second federal sentence on November 1, 1984,¹ nor was he entitled to credit toward his federal sentence for a period commencing on that date.

Credit commencing November 27, 1989

Clark next argues that he is entitled to credit toward his federal sentence from November 27, 1989, the date on which he was erroneously released from the Montana prison rather than being delivered to the custody of federal marshals, to August 18, 1992, the date on which he was actually taken into federal custody to begin serving his federal sentence. He relies on United States v. Martinez, 837 F.2d 861, 865 (9th Cir.1988), where we held that

[u]nder the doctrine of credit for time at liberty, a convicted person is entitled to credit against his sentence for the time he was erroneously at liberty provided there is a showing of simple or mere negligence on behalf of the government and provided that the delay in execution of sentence was through no fault of his own.

Id. at 865. See also Green v. Christiansen, 732 F.2d 1397, 1400 (9th Cir.1984).

The district court rejected Clark’s argument because it noted that in Martinez, we also said:

Traditionally, the doctrine of credit for time at liberty has only been applied where a convicted person has seived some part of his sentence and then been erroneously released. It is immaterial whether the convicted person has seived one day or ten years of his sentence; if he is erroneously released thereafter, he is entitled to full day-for-day credit for the time he was at liberty. We express no opinion whether a distinction between serving one day and serving no time at all justifies a conclusion that credit be given for time erroneously at liberty.

Martinez, 837 F.2d at 865 (citations omitted).

We do not find this last passage from Martinez dispositive of Clark’s case. Indeed, it expresses no opinion on the question now at issue. We did, however, confront a similar situation in Smith v. Swope, 91 F.2d at 261-62, a case to which we have already alluded. There we held that a prisoner was entitled to credit from the time the court ordered him to begin serving his sentence “forthwith,” despite the marshal’s failure to execute the court’s order. We did not concern ourselves with the fact that the prisoner had not served any part of his federal sentence prior to the time for which he was given credit. Id. at 262; accord United States v. Croft, 450 F.2d 1094 (6th Cir.1971). We noted that

[t]he prisoner is entitled to serve his time promptly if such is the judgment imposed, and he must be deemed to be serving it from the date he is ordered to serve it and is in the custody of the marshal under the commitment, if, without his fault, the marshal neglects to place him in the proper custody.

Smith, 91 F.2d at 262. Otherwise, the result would be to grant

the marshal, a ministerial officer, power more arbitrary and capricious than any known in the law. A prisoner sentenced for one year might thus be required to wait forty under the shadow of his un-served sentence before it pleases the marshal to incarcerate him.

Id.

Once he was released from Montana prison, Clark was entitled to the benefit of our ruling in Smith. There is no dispute that Clark was released from the Montana prison rather than being delivered to federal prison authorities “through the inadvertence of agents of the government and through no fault of his own.” Green, 732 F.2d at 1400. Therefore, Clark should be given credit toward his federal sentence from November 27, 1989, the date he was released by the Montana authorities, to August 18, 1992, the date he actually began to serve his federal sentence.

We reverse the district court’s dismissal of Clark’s petition and remand to the district court for issuance of a writ requiring the credit to be granted.

REVERSED and REMANDED.

1 . The computation of Clark’s sentence was controlled at that time by 18 U.S.C. § 3568, which stated that

[t]he sentence of imprisonment of any person convicted of an offence shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of such sentence....