                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-11-2007

Vega v. USA
Precedential or Non-Precedential: Precedential

Docket No. 05-5105




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                                         PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT


                    No. 05-5105


               DAGOBERTO VEGA,

                          Appellant

                          v.

         UNITED STATES OF AMERICA


   On Appeal from the United States District Court
      for the Western District of Pennsylvania
               (D.C. No. 05-cv-00305J)
     District Judge: Honorable Kim R. Gibson


             Argued October 25, 2006
Before: SMITH, FISHER and COWEN, Circuit Judges.

               (Filed: July 11, 2007 )
Gail E. Laser (Argued)
260 Madison Avenue, 22nd Floor
New York, NY 10016
       Attorney for Appellant

Laura S. Irwin
Kelly R. Labby
Office of United States Attorney
700 Grant Street, Suite 4000
Pittsburgh, PA 15219

Henry J. Sadowski (Argued)
Federal Bureau of Prisons
U.S. Customs House, 7th Floor
2nd and Chestnut Streets
Philadelphia, PA 19106
      Attorneys for Appellee




                 OPINION OF THE COURT


FISHER, Circuit Judge.

       Appellant Dagoberto Vega filed a petition for habeas
corpus relief pursuant to 28 U.S.C. § 2241, requesting credit for
the time he was incarcerated from August 27, 1998 through July
30, 1999, and credit for the period from April 17, 2002 through
February 25, 2004, during which he was at liberty after being
erroneously released from confinement by New York prison

                               2
officials. Following the report and recommendation of the
Magistrate Judge, the District Court denied Vega’s petition. On
appeal, Vega challenges the calculation of his sentence, citing
as error the District Court’s failure to award him credit for these
periods. The question of whether an erroneously released
prisoner is entitled to credit for time spent at liberty is one of
first impression for this Court. As explained below, we agree
with the District Court’s determination that no credit should be
accorded for the period of time between August 27, 1998 and
July 30, 1999, but we will remand for further consideration in
accordance with this opinion of whether Vega should receive
credit for the time he spent at liberty.

                                I.

        Vega was arrested by New York state authorities on
August 27, 1998, while on state parole. The State of New York
charged him with drug possession, assault, and violation of
parole. On July 30, 1999, he was transferred into federal
custody pursuant to a writ of habeas corpus ad prosequendum
and charged with federal offenses based upon the same conduct
as that which gave rise to most of the state charges. On August
1, 2001, the State dismissed all of its charges, except for the
parole violation. On December 10, 2001, after pleading guilty
to the federal charges and being sentenced to 96 months, Vega
was returned to state custody for completion of his parole
violation sentence after the U.S. Marshals Service for the
Eastern District of New York lodged a federal detainer advising
the state warden to notify the Marshals Service when Vega had
completed his state sentence. The Marshals Service never
received a letter of acknowledgment confirming receipt of the

                                3
federal detainer. Nor did the Marshals Service inquire of the
State whether it was received and, if received, whether it would
be honored.

       The State revoked Vega’s parole on February 8, 2002,
and he received a 44-month sentence. Upon completion of that
sentence on April 16, 2002, instead of being transferred to the
custody of the Marshals Service pursuant to the detainer they
had attempted to lodge at the state prison, Vega was released on
April 17, 2002. The New York prison warden allegedly told
Vega that there was no detainer on file for him. Slightly less
than two years later, on February 25, 2004, federal authorities
arrested Vega and returned him to custody to complete his
federal sentence.

        After exhausting his administrative remedies, Vega filed
a petition for a writ of habeas corpus, which the District Court
denied. The District Court determined that Vega had received
full credit on his federal sentence for the period from July 30,
1999 through November 29, 2001, the day before he was
sentenced on the federal charges, and that he therefore still had
67 months and 28 days left to serve. The Court further
explained that Vega was not entitled to credit toward his federal
sentence for time spent at liberty because his release resulted
from the error of a separate sovereign.

                               II.

      The District Court had jurisdiction under 28 U.S.C.
§ 2241. Jurisdiction is proper in this Court under 28 U.S.C.
§§ 1291 and 2253. See Marshall v. Cathel, 428 F.3d 452, 453

                               4
(3d Cir. 2005). This Court reviews a District Court’s denial of
habeas corpus relief de novo. Reinert v. Larkins, 379 F.3d 76,
83 n.2 (3d Cir. 2004); Royce v. Hahn, 151 F.3d 116, 118 (3d
Cir. 1998). We review the District Court’s factual findings for
clear error. See, e.g., Ruggiano v. Reish, 307 F.3d 121, 126 (3d
Cir. 2002) (“In reviewing a federal habeas judgment, ‘we
exercise plenary review over the district court’s legal
conclusions and apply a clearly erroneous standard to its
findings of fact.’”) (quoting Rios v. Wiley, 201 F.3d 257, 262
(3d Cir. 2000)).

                               III.

       Vega contests the District Court’s denial of credit for the
period between his August 27, 1998 arrest and the July 30, 1999
transfer to federal custody, contending that the Bureau of
Prisons (“BOP”) is incorrect in its contention that this time
period has been credited against his parole violation offense.
Vega offers scant, and largely speculative, support for the
proposition that he received only a 90-day sentence on his parole
violation. He claims that he was a Category 3 parole violator
and therefore was entitled to a sentence on the parole violation
that was the equivalent of time spent in custody on the parole
violation warrant plus three months, as opposed to the 1,261
days certified by the Division of Parole. N.Y. Comp. Codes R.
& Regs. tit. 9, § 8005.20(c)(3)(ii). However, he points to
nothing in the record to show that he was a Category 3 violator.
He merely asserts that he fell into that category and should have
received only a three-month sentence. He has therefore failed
to demonstrate his right to relief. See United States v. Harris,
876 F.2d 1502, 1506-07 (11th Cir. 1989) (“Where a convicted

                                5
federal prisoner claims credit for time served in a state jail or
prison, the burden is on the prisoner to establish that the state
confinement ‘was exclusively the product of such action by
Federal law-enforcement officials [so] as to justify treating the
State jail as the practical equivalent of a Federal one.’” (quoting
Ballard v. Blackwell, 449 F.2d 868, 869 (5th Cir. 1971))).

       The Government states that no credit is due to Vega
because this time period had already been credited against his
state parole violation sentence of 1,261 days, so that it was
unavailable as credit toward his federal charge. See 18 U.S.C.
§ 3585(b) (allowing credit for time spent in detention prior to
the date of sentencing that has not been credited against another
sentence). Moreover, the Government notes that the parole
violation conduct was unrelated to the conduct that formed the
basis for his federal charge. The conduct for which Vega’s
parole violation warrant issued was assault, failing to report to
a parole officer, and leaving his residence without permission.

       The District Court correctly found that the period of time
between August 27, 1998 and July 30, 1999, should not have
been credited to the defendant as part of his federal sentence.
The BOP allotted this time to Vega’s state parole violation term,
and therefore it is not available to be credited toward his federal
sentence on the narcotics offense. 18 U.S.C. § 3585(b).
Accordingly, the District Court’s finding is not clearly
erroneous.




                                6
                                IV.

                                A.

        The principal issue before us is whether Vega should
receive credit toward his federal sentence for the nearly two
years he spent at liberty as a result of his erroneous release from
the state penitentiary system. Vega proposes that his two
periods of incarceration should have run continuously, and thus,
the unintentional lapse between the two sentences entitles him
to have the intervening period of liberty counted toward his
federal sentence. This proposition finds support in the case law
of other circuits, where it is alternately referred to as the “rule”
or the “doctrine” of credit for time at liberty.1 The origin of the
rule in federal case law can be traced to White v. Pearlman, 42


       1
        The Eleventh Circuit made particular note of this
apparent terminological disagreement. See United States v.
Barfield, 396 F.3d 1144, 1147 n.1 (11th Cir. 2005). This
opinion adopts the “rule” nomenclature, in accordance with the
Seventh Circuit’s observation that “[p]unishment on the
installment plan is forbidden,” and explanation that the
“common law rule, . . . that unless interrupted by fault of the
prisoner (an escape, for example) a prison sentence runs
continuously from the date on which the defendant surrenders
to begin serving it,” was “only a rule of interpretation . . . not a
constitutional command.” Dunne v. Keohane, 14 F.3d 335, 336-
37 (7th Cir. 1994) (emphasis added). As discussed below, we
are in accord with the spirit, if not the exact letter, of the
Seventh Circuit’s understanding of the rule.

                                 7
F.2d 788 (10th Cir. 1930). In that case, the Tenth Circuit
established that “where a prisoner is discharged from a penal
institution, without any contributing fault on his part, and
without violation of conditions of parole, [] his sentence
continues to run while he is at liberty.” 2 Id. at 789. However,
the court noted that “[a]s to whether a prisoner, who knows a
mistake is being made and says nothing, is at fault, we do not
now consider.” Id.

        While courts vary in their interpretation and application
of the rule, most agree that a mere delay in the commencement
of a sentence is insufficient to give a prisoner the right to credit
for time at liberty. Most recently, in Leggett v. Fleming, 380
F.3d 232 (5th Cir. 2004), the Fifth Circuit reiterated that “we
have also held that a delay in the commencement of a sentence
by itself does not constitute service of that sentence.” Id. at 234;
but see Smith v. Swope, 91 F.2d 260, 262 (9th Cir. 1937) (“The
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




       2
        A number of circuits, including our own, have adopted
the holding in White. See Free v. Miles, 333 F.3d 550, 554 (5th
Cir. 2003) (“[I]nadvertent prisoner releases . . . present
circumstances that courts have repeatedly held to be deserving
of credit for time served.”); United States ex rel. Binion v.
O’Brien, 273 F.2d 495, 498 (3d Cir. 1960).

                                 8
marshal under the commitment, if, without his fault, the marshal
neglects to place him in the proper custody.”).3

       Courts adopting the rule also seem to generally agree
upon the “power of the government to recommit a prisoner who


       3
        However, some courts have held that if the authorities
cause an excessive delay in the commencement of a sentence,
they may waive jurisdiction of their right to execute a sentence.
See Shields v. Beto, 370 F.2d 1003, 1004-06 (5th Cir. 1967)
(noting that “delay in execution of a sentence is repugnant to the
law”). The Fifth Circuit explained that waiver is only
appropriate in limited circumstances:

       [I]t is not sufficient to prove official conduct that
       merely evidences a lack of eager pursuit or even
       arguable lack of interest. Rather the waiving
       state’s action must be so affirmatively wrong or
       its 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.

Piper v. Estelle, 485 F.2d 245, 246 (5th Cir. 1973); accord
Shelton v. Ciccone, 578 F.2d 1241, 1244 (8th Cir. 1978). Waiver
differs from the time spent at liberty rule because waiver
prevents authorities from re-incarcerating a prisoner even if that
prisoner still has time left on his sentence. See Shields, 370 F.2d
at 1006. Vega does not assert a serious waiver argument here.

                                9
is released or discharged by mistake, where his sentence would
not have expired if he had remained in confinement.” White, 42
F.2d at 789; see also Green v. Christiansen, 732 F.2d 1397,
1399 (9th Cir. 1984) (“A ministerial mistake does not
necessarily excuse Green from serving the rest of his
sentence.”). In other words, a mistaken release does not prevent
a government from reincarcerating a prisoner who has time to
serve. The question is whether he should be given credit against
his sentence for the time he was at liberty.

        To this point, we have had little to say on the rule of
credit for time at liberty. In fact, we have only a single case that
has addressed the reasoning of White v. Pearlman – United
States ex rel. Binion v. O’Brien, 273 F.2d 495 (3d Cir. 1960).
In O’Brien, the prisoner was serving both a term of probation
imposed by the state of Nevada and a prison sentence in the state
of Texas. He was released on bail from his Texas imprisonment
pending the outcome of a Supreme Court case. During the time
he was free, he was required to report to a Nevada probation
officer on a weekly basis, which he did. His Nevada term of
probation ended during the time he was on bail from Texas, but
he continued to report to the probation officer until he was
returned to Texas to fulfill his sentence.

        The prisoner’s claim in a habeas petition was that he
deserved credit for the time he reported to the probation officer
after his Nevada term of probation had ended but before he was
returned to Texas. Relying on Smith and White, we held that the
prisoner deserved credit for the time he was on bail. Id. at 498.
We stated that Smith and White “stand for the proposition that
where an individual’s liberty is restrained by the act of an officer

                                10
of the United States having authority to exercise restraint, such
individual is entitled to credit for the period of that restraint
towards service of his sentence.” Id. Because the prisoner was
required to report to a probation officer longer than his Nevada
probation required, he was entitled to have time credited against
his Texas term of incarceration.

        O’Brien used White to support a different proposition
than most courts relying on it. The narrow holding of O’Brien
is that when a prisoner is restrained to the point of practical
imprisonment, he must be granted credit for that time.
Therefore, O’Brien does not respond to the related question of
what happens when a prisoner is not restrained, but should have
been, because of governmental negligence.

                               B.

        The diverging paths taken by courts of appeals and the
lack of any precedent from this Court compel us to formulate a
test which district judges may apply in resolving claims for
credit for time at liberty when a prisoner has been erroneously
released by one sovereign without having completed an
obligation to a separate sovereign. In fashioning this test, we
take full cognizance of the important interests at stake.

       As a preliminary matter, we note that the interests upon
which we base this test do not have constitutional stature. See
Dunne, 14 F.3d at 336-37. Vega asserts that he has a due
process right to receive credit for the time at liberty. The
Supreme Court has directed that “in a due process challenge to
executive action, the threshold question is whether the behavior

                               11
of the governmental officer is so egregious, so outrageous, that
it may fairly be said to shock the contemporary conscience.”
County of Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998).
Several courts have suggested that “a relatively high degree of
culpability is required to shock the conscience in this context of
delayed execution [of a sentence].” See Bonebrake v. Norris,
417 F.3d 938, 943 (8th Cir. 2005); Hawkins v. Freeman, 195
F.3d 732, 742 (4th Cir. 1999).

        Assuming that the reincarceration of a defendant after a
period at liberty meets the Lewis standard, the question becomes
whether “the government’s conduct violate[s] one or more
fundamental rights that are deeply rooted in this Nation’s history
and tradition, and implicit in the concept of ordered liberty, such
that neither liberty nor justice would exist if they were
sacrificed.” Bonebrake, 417 F.3d at 944 n.2 (internal quotation
omitted). Navigating through the sea of potential rights has
proven challenging for courts, and none have satisfactorily
identified a concrete interest upon which to anchor the right to
procedural due process in interrupted detention cases. See
United States v. Sanders, 452 F.3d 572, 583 (6th Cir. 2006);
Hawkins, 195 F.3d at 750. We are likewise unable to conclude
that credit for time spent at liberty is among those “fundamental
principles of liberty and justice which lie at the base of all our
civil and political institutions.” Powell v. Alabama, 287 U.S.
45, 67 (1932).

       Vega contends that it is a violation of the fundamental
principles of liberty and justice to require a prisoner who has
been erroneously released and has begun the rehabilitation
process to return to incarceration. Other courts have declined to

                                12
find due process violations in similar circumstances. See, e.g.,
Thompson v. Cockrell, 263 F.3d 423, 426 (5th Cir. 2001)
(“[T]he Due Process Clause does not by itself prohibit states
from denying prisoners calendar time after an erroneous
release.”); Hawkins, 195 F.3d at 746-47 (holding that an
erroneously released prisoner did not suffer a deprivation of his
substantive due process rights in being returned to prison);
Camper v. Norris, 36 F.3d 782, 784-85 (8th Cir. 1994) (noting
that where “the only evidence of the state’s negligence was its
failure to deliver the mandate by certified mail, . . . [t]his failure
does not amount to the type of affirmative wrong or gross
negligence that is required to violate Camper’s due process
rights,” and questioning whether a due process right exists such
that “it is fundamentally unfair for the state to incarcerate [a
defendant] after . . . inordinate delay,” or that “it is
unconscionable to incarcerate [a defendant] after he has
rehabilitated himself and started a new life”); but see Johnson
v. Williford, 682 F.2d 868, 873 n.3 (9th Cir. 1982) (holding that
it would be inconsistent with fundamental principles of liberty
and justice to return Johnson to prison where the federal
authorities took no action on the detainer). We likewise decline
to find a due process violation here.

       Because we do not find a constitutional basis upon which
to anchor the rule of credit for time spent erroneously at liberty,
the roots of the rule must be located elsewhere. In this respect,
we look to the common law. In Dunne v. Keohane, the Seventh
Circuit explained that, under the common law, “[t]he
government is not permitted to delay the expiration of the
sentence either by postponing the commencement of the
sentence or by releasing the prisoner for a time and then

                                 13
reimprisoning him.” 15 F.3d at 336 (also noting that “[t]he
common law rule has not been successfully invoked for many
years . . . .”); see also Cox v. United States ex rel. Arron, 551
F.2d 1096, 1099 (7th Cir. 1977) (noting the continued vitality of
the “common law rule prohibiting imprisonment by
installments”); Albori v. United States, 67 F.2d 4, 7 (9th Cir.
1933). This common law rule is the sole basis upon which Vega
may seek to recover the entirety of the time he spent erroneously
at liberty.4

       Looking to the common law, we find that three interests
are of paramount importance when determining whether an
erroneously released prisoner should be granted credit for the
time he was at liberty. The first is simple fairness toward the
prisoner. As the Tenth Circuit stated in White:


       4
         Despite the lack of a liberty interest in credit for the
entire time he spent at liberty, Vega has a liberty interest in good
time credits, which he does not appear to have been awarded for
the period between his release from the state facility and
reincarceration in federal prison. See Wolff v. McDonnell, 418
U.S. 539, 557 (1974) (“But the State having created the right to
good time and itself recognizing that its deprivation is a sanction
authorized for major misconduct, the prisoner’s interest has real
substance and is sufficiently embraced within Fourteenth
Amendment ‘liberty’ to entitle him to those minimum
procedures appropriate under the circumstances and required by
the Due Process Clause to insure that the state-created right is
not arbitrarily abrogated.” (emphasis added)); 18 U.S.C.
§ 3624(b)(1) (creating the right in the federal system).

                                14
       A prisoner has some rights. 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. Certainly a prisoner
       should have his chance to re-establish himself and
       live down his past.

42 F.2d at 789. In short, a prisoner has a right to serve his
sentence continuously and in a timely manner, and to resettle
after he has served his sentence without the fear that the
government, at some undetermined point in the future, will
reincarcerate him.

       In addition to affecting a prisoner’s rights, allowing the
delayed or interrupted service of a sentence grants the officers
entrusted with the execution of sentences excessive power. As
the Ninth Circuit pointed out in Smith,

       If a ministerial officer, such as a marshal, charged
       with the duty to execute the court’s orders, fails to
       carry out such orders, that failure cannot be
       charged up against the prisoner. . . . Any other
       holding would give 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
       [years] under the shadow of his unserved sentence
       before it pleases the marshal to incarcerate him.
       Such authority is not even granted to courts of
       justice, let alone their ministerial officers.

                                15
91 F.2d at 262. As the sole entity responsible for execution of
a prisoner’s sentence, the government bears the burden of
ensuring that the sentence is carried out in a timely manner, and
there is an important policy consideration in encouraging that it
does just that.

       However, as important as the rights of prisoners and the
need to limit the capricious exercise of governmental power is
the government’s and society’s interest in convicted criminals
serving out their sentences. Artez v. Mulcrone, 673 F.2d 1169,
1171 (10th Cir. 1982) (“[S]ociety has a legitimate interest in
ensuring that prisoners convicted of serious crimes not be
released before serving their full sentences unless they are
rehabilitated.”). Therefore, any rule we articulate must be
heedful of these three competing interests and ensure that all
interested parties – the prisoner, government and society – share
equally in the benefits and burdens of such a rule.

                               C.

       With these important interests in mind, we turn to the
proper formulation of the doctrine. Vega proposes a totality of
the circumstances test like that used in United States v.
Martinez, 837 F.2d 861 (9th Cir. 1988), and more recently in
United States v. Mercedes, No. 90-Cr. 450, 1997 U.S. Dist.
LEXIS 3009, at *10-11 (S.D.N.Y. Mar. 17, 1997)
(unpublished); see also DeWitt v. Ventetoulo, 6 F.3d 32, 35 (1st
Cir. 1993). In particular, Vega asks us to look to the degree of
the Government’s negligence, the length of the delay from his
release to his apprehension, the fact that he was on state parole
while at liberty, and the fact that he maintained employment and

                               16
lived openly in the community. He asserts that these factors
weigh in favor of awarding him credit for the time he spent at
liberty.

       The Government proposes that only gross negligence on
the part of the federal government should relieve a prisoner from
having to serve the full extent of his sentence, and that
erroneously released prisoners must have clean hands in order
to receive credit for time spent at liberty. The Government
asserts that Vega bears some fault because he did not contact
federal authorities upon his release from state prison, even
though he was required by the federal Judgment and
Commitment Order to report to the U.S. Probation Office
following his release from the Bureau of Prisons.5 Therefore,
the Government argues, he could not have been under the
mistaken impression that he had completed his state and federal
sentences, because if he had thought that he had fully served his
time, he would have reported to the Probation Office. This line
of reasoning would place responsibility for the execution of a
prisoner’s sentence at least partly on the prisoner, something that
we are not inclined to do. See, e.g., Martinez, 837 F.2d at 866
(“[J]ust as a defendant has no duty to bring himself to trial, . . .
he has no affirmative duty to aid in the execution of his
sentence.” (citing Barker v. Wingo, 407 U.S. 514, 527 (1972))).


       5
        We observe that Vega was not in violation of the
Judgment and Commitment Order since, by its very terms, he
was not released by federal authorities, but by the State. His
obligation to report to the Probation Office was only triggered
upon release from the Federal Bureau of Prisons.

                                17
        While both Vega and the Government have presented
compelling arguments for their tests, we find that neither test
properly balances the interests at stake. Therefore, we adopt the
test laid out below, which takes appropriate consideration of the
prisoner’s interest in serving his sentence in a continuous and
timely manner, the need to limit the arbitrary use of
governmental power, and the government’s and society’s
interest in making sure a prisoner pays the debt he owes to
society. Therefore, in order for a prisoner to receive credit for
time he was erroneously at liberty, the prisoner’s habeas petition
must contain facts that demonstrate that he has been released
despite having unserved time remaining on his sentence. Once
he has done this, the burden shifts to the government to prove
either (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.

       This test is similar to tests created by our sister circuits
who have addressed the issue. See, e.g., Martinez, 837 F.2d at
865 (“Under 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 the delay in execution of sentence was through no fault
of his own.”). The only difference here is the burden shifting,
which we find gives effect to the language of the habeas
framework. As with any habeas petition, this test puts the initial
burden on the prisoner to show his right to relief, which he does
by indicating that his right to serve his sentence continuously
has been denied him. See 28 U.S.C. § 2242. The test then
requires the court to grant the petition unless the respondent

                                18
government can “show cause why the writ should not be
granted.” 28 U.S.C. § 2243. The burden shifting scheme also
places the burden on the party that has greater access to
documents tending to prove a lack of governmental negligence
or prisoner fault.

                                1.

        The government may first show cause to deny the
prisoner’s habeas petition by proving that there was no
governmental negligence. The rule of credit for time at liberty
serves as a limit on the power of the marshals or ministerial
officers engaged in imprisoning defendants, and encourages
these same officials to take responsibility for the prisoners with
whose custody they are charged. Shelton v. Ciccone, 578 F.2d
1241, 1245 (8th Cir. 1978); see also Smith, 91 F.2d at 262
(stating that allowing a ministerial officer to reimprison a
prisoner after he was released because of governmental
negligence would result in granting that officer “power more
arbitrary and capricious than any known in the law”); Dunne, 14
F.3d at 336 (“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.”). To allow a
prisoner to receive credit for time he spent at liberty through no
fault of the government would do little to encourage
governmental responsibility in the timely execution of a
prisoner’s sentence. Leggett, 380 F.3d at 235-36.

       Nearly every court to have considered the rule of credit
for time at liberty has required that the government’s actions in

                               19
releasing or failing to incarcerate the prisoner be negligent. See
id. at 235; Green, 732 F.2d at1400; United States v. Croft, 450
F.2d 1094, 1097 (6th Cir. 1971); Gillman v. Saxby, 392 F. Supp.
1070, 1073 (D. Haw. 1975); Derrer v. Anthony, 463 S.E.2d 690,
693 (Ga. 1995). We, therefore, have little difficulty joining
these courts and finding that habeas relief is inappropriate where
the government’s hands are entirely clean. However, even
simple negligence, rather than the gross negligence suggested by
the Government, can defeat a claim of clean hands. See Green,
732 F.2d at 1399-1401 (granting prisoner credit for time at
liberty even though governmental actions were not so egregious
as to constitute gross negligence thereby allowing waiver).

        However, the question that remains is whether the
government need show only that the imprisoning sovereign, in
this case the United States, was free from negligence, or whether
it must also show that any independent sovereign that was
involved in the release, in this case the State of New York, was
also free from negligence. In other words, is negligence on the
part of any sovereign sufficient, or must the negligence rest with
the imprisoning sovereign? The courts to have addressed this
issue are divided. The Ninth Circuit has held that negligence on
the part of any governmental entity is sufficient to allow credit
for time spent at liberty, Clark v. Floyd, 80 F.3d 371, 374 (9th
Cir. 1995), while the Fifth Circuit has held that a prisoner
should not receive credit for time he is at liberty when his
erroneous release is the mistake of an independent sovereign,
Leggett, 380 F.3d at 235-36. We join our colleagues on the
Fifth Circuit in holding that the imprisoning sovereign must be
negligent.


                               20
       In Clark, the defendant was convicted in a federal district
court of drug offenses and sentenced to two consecutive five-
year prison terms. While he was on bail pending an appeal, he
was arrested in Montana, charged and convicted of state drug
offenses and immediately began to serve a forty-year sentence.
While he was serving this state sentence, the federal court issued
a writ of habeas corpus ad prosequendum so that Clark could
face probation revocation. At the probation hearing, the district
court sentenced Clark to a third five-year term. The Marshals
Service returned Clark to state prison, lodged a detainer with the
Montana State Prison Records Office, and received
acknowledgment of the detainer. However, when Clark was
released on parole by Montana, authorities failed to notify the
Marshals Service. Clark was taken into federal custody three
years later.

       In a brief opinion, the Ninth Circuit majority held that
Clark should be given credit for the time he spent at liberty.
Because Clark was released “through the inadvertence of agents
of the government and through no fault of his own,” id. at 374
(internal quotation marks and citation omitted), Clark deserved
to have time credited toward his federal sentence. However,
Judge Fernandez filed a heated dissent, arguing that Clark did
not deserve credit because the federal authorities had made no
mistake and Clark had made no affirmative steps to serve his
federal sentence. Id. at 375 (Fernandez, J., dissenting).

       Picking up on Judge Fernandez’s arguments, the Fifth
Circuit held nine years later that a prisoner may not receive
credit for time he spent at liberty where a sovereign that is
independent of the imprisoning sovereign was responsible for

                               21
the erroneous release. In Leggett, while in state prison for a
probation violation, the defendant was transferred through a writ
of habeas corpus ad prosequendum to federal district court to
face charges of being a felon in possession. He pleaded guilty,
was sentenced to seventy months imprisonment, and was then
returned to state prison. At the time of his return, the Marshals
Service lodged a detainer with the Sheriff’s Department, which
acknowledged receipt of the detainer. After the parole board
revoked Leggett’s probation, he was transferred to the Texas
Department of Criminal Justice, but his detainer did not travel
with him. Therefore, when he was released from prison, the
Marshals Service was not notified. Leggett was picked up a
year later on a fugitive warrant for violating his state parole, but
again federal authorities were not notified. The Marshals
Service did not arrest Leggett until approximately three years
after he had initially been released from custody.

        Based on these facts, the Fifth Circuit held that Leggett
did not deserve credit for the time he was at liberty. It stated
that “the errors of state officials should not impact a prisoner’s
service of his federal sentence.” Leggett, 380 F.3d at 235. It
continued, “[w]here there is no evidence that the governmental
authority seeking to enforce the prisoner’s sentence has erred, a
prisoner should not be allowed to avoid service of that
sentence.” Id. at 235-36.

       We are persuaded by the reasoning of the Fifth Circuit
and Judge Fernandez’s dissent. Because the rule of credit for
time at liberty serves policy goals that encourage fairness to the
defendant, responsibility and restraint on the part of the officials
executing the sentence, and service of the time owed to society,

                                22
we choose not to formulate a rule that does not encourage one
of those goals. Were we to allow a prisoner credit for time spent
at liberty where no fault lies with the imprisoning authority, the
goal of fairness to the defendant would be served at the expense
of society’s expectation that a prisoner will serve the time he
owes.

         That said, the question in this case is not so easy as
asking whether New York made a mistake. Whether the
imprisoning sovereign has clean hands is a factual inquiry that
looks not just to which sovereign made the more serious error.
Rather, the court reviewing a petitioner’s habeas petition must
consider if the imprisoning sovereign was partially at fault. This
inquiry is a factual one best conducted before a District Court.
In the case before us, factual inquiries remain regarding the
degree of fault, if any, of the United States. Therefore, we will
remand the case so that the District Court can consider in the
first instance whether the United States was negligent, taking
into consideration the detainer and the Government’s admission
that it never received notice that the detainer had been received.
In addition, this case presents unique circumstances that involve
a very close working relationship between federal and state
authorities. Therefore, on remand the District Court should
consider in the first instance the legal issue of whether, under
these particular facts, the State of New York was acting as an
agent of the federal government.

                                2.

       In addition to proving that the imprisoning sovereign was
free from negligence, the government may defeat a habeas

                               23
petition by showing that the prisoner affirmatively effectuated
his release or continued freedom. All courts agree that if a
prisoner has actively effectuated his release, for example by
escaping, or actively thwarted governmental attempts to recover
him, he may not receive credit for time at liberty. See, e.g.,
White, 42 F.2d at 789 (“Nor can there be any doubt that an
escaped prisoner cannot be credited with the time he is at
large.”). Therefore, a prisoner who escapes or, after release,
actively engages in conduct to thwart governmental attempts to
find and re-incarcerate him, should not be able to accept the
benefits of his misbehavior. In such cases, there is no unfairness
to the defendant when the government requires him to serve the
full sentence he owes. Id. Therefore, we agree with our sister
circuits and require that a prisoner must come to the service of
his sentence with clean hands before he may receive credit for
time at liberty.

       The government cannot meet its burden under this prong
merely by showing that a prisoner did not take affirmative steps
to effectuate his own sentence. If a prisoner suspects that he
may have another sentence to serve and does nothing to notify
authorities, he may still receive credit against his sentence so
long as his conduct has not violated his parole or thwarted
authorities in any other manner. This holding comports with
other courts’ decisions that have refused to require a prisoner to
bring the mistaken release to the attention of either the releasing
or imprisoning sovereign. See, e.g., Green, 732 F.2d at 1400
(granting credit despite prisoner’s knowledge that he owed time
on another sentence). In this case, there is no suggestion that
Vega effectuated his own release, such as by escaping.
However, we lack specific findings from the District Court

                                24
regarding Vega’s behavior following his release from prison.
Therefore, we must remand so that the District Court may
consider in the first instance whether Vega engaged in illicit
behavior in order to thwart governmental attempts to
reincarcerate him.

                               V.

       Although there is not a constitutionally-based right to
credit for time at liberty as a result of mistaken release, we
decline to adopt a rule that would unduly penalize releasees who
have readjusted to life outside of confinement or unduly
penalize the government when it has had no hand in a prisoner’s
erroneous release. When evaluating which releasees should
receive credit for their premature freedom, district courts are to
apply the two-part test articulated here. A prisoner is to receive
credit for the time he was at liberty if he can bring forth facts
indicating that he was released despite having unserved time
remaining. The government may then respond to the petition by
showing that, either, the imprisoning sovereign was not
negligent, or vicariously negligent, or that the prisoner, in any
way, affirmatively effectuated his release or prevented his re-
apprehension. We therefore vacate the District Court’s order in
part and remand for the District Court to consider whether the
Government has made such a showing.6 Vega will not,


       6
        It appears that if Vega’s position is upheld on remand,
he will have served or will be close to having served his
sentence in full. Accordingly, on remand the District Court is
instructed to forthwith and without delay hold a bail hearing on

                               25
however, receive credit toward his federal narcotics sentence for
the period between August 27, 1998 and July 30, 1999, because
this time was credited against his state parole violation.
Accordingly, we will affirm the District Court’s judgment with
respect to the August 27, 1998-July 30, 1999 period.




an expedited basis.

                               26
