          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Parole Commission that his presumptive parole date be rescinded,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


                                  -2-
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.

                                -3-
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


                                          -4-
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,


                                     -5-
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,




                                  -6-
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).

                                         -7-
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.

                                    -8-
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




                                   -9-
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).

                                  -10-
            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


                                   -11-
(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.

                                        -12-
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).

                                   -13-
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


                                   -14-
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


                                  -15-
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


                                      -16-
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

                                   -17-
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.

                                    -18-
