                                                              [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         ________________________                    FILED
                                                            U.S. COURT OF APPEALS
                                 No. 04-14712                 ELEVENTH CIRCUIT
                             Non-Argument Calendar                JUNE 8, 2005
                           ________________________            THOMAS K. KAHN
                                                                    CLERK
                   D. C. Docket No. 02-00277-CV-OC-10-GRJ

LAZARO DIAZ,

                                                          Petitioner-Appellant,

                                       versus

CARLYLE HOLDER, Warden,

                                                          Respondent-Appellee.
                           ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                        _________________________

                                  (June 8, 2005)

Before ANDERSON, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

      Lazaro Diaz, a pro se federal prisoner serving a 188-month sentence for

conspiracy to distribute five kilograms of cocaine, appeals the district court’s

dismissal of his 28 U.S.C. § 2241 petition. In his petition he argued that the Bureau
of Prisons (“BOP”) improperly denied him credit for time served at liberty and

sanctioned him for the loss of 27 days of “good time.” The district court dismissed

the petition, finding that: (1) Diaz was not entitled to credit for time served at liberty

because he knew or should have known that he had not served his federal sentence,

and thus was partially responsible for being improperly released by Louisiana

officials after the dismissal of Louisiana state charges, and (2) Diaz had not exhausted

his administrative remedies as to the loss of 27 “good time” days.

      “In reviewing the district court’s denial of habeas corpus petition, we review

questions of law de novo and the court’s findings of fact for clear error.” Little v.

Holder, 396 F.3d 1319, 1321 (11th Cir. 2005). After on our thorough review of the

record and careful consideration of the parties’ briefs, we affirm.

      The relevant facts are straightforward. On April 25, 1996, after Diaz pled

guilty to conspiring to distribute five kilograms of cocaine, the United States District

Court for the Southern District of Louisiana sentenced him to a 188-month term of

imprisonment. In the instant § 2241 petition, Diaz stated that, on May 23, 1997, the

BOP transferred him from a federal prison in Florida (“FCC Coleman”), where he

was serving his 188-month sentence, back to Louisiana to face pending state charges.

According to Diaz, at the time of his transfer, BOP authorities alleged that they gave

him a form to sign advising him that if state authorities released him, he was to

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immediately contact FCC Coleman. Diaz averred that he did not remember signing

such a document and that, even if the BOP gave him the document, he did not speak,

read, or write English. On June 19, 1997, after the Louisiana state charges were

dismissed, the Louisiana authorities released Diaz, and he remained at liberty for 817

days, until federal authorities arrested him after a tip from an informant. In his habeas

petition, Diaz sought credit for the 817 days he spent at liberty.1

       Holder, in his official capacity as Warden of FCC Coleman, responded that

when he was released to the Louisiana authorities for trial on the state charges, Diaz

signed an acknowledgment form, which stated, in part:

               I am aware that State officials are to return me to Federal custody
               at the conclusion of my State trial. I am also aware that State
               officials should not release me into the community. If I am
               released by State authorities into the community, I am aware that
               my Federal sentence will not run, and that I will not receive credit
               on my Federal sentence for any period of time I am in the
               community following release by State officials.

Holder further alleged that when Diaz was released from federal custody, he was “on

loan” to Louisiana authorities pursuant to a writ of habeas corpus ad prosequendum

for trial and possible sentencing on the state charges. Because Diaz signed the

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           Diaz also alleged that after his arrest, when he was returned to custody at FCC Coleman,
he was wrongly punished for having “escaped,” in that prison officials took 27 days of good time
earned from him. Diaz conceded that the escape charges were eventually dropped, but maintained
that he should not have been sanctioned. The district court found that Diaz did not exhaust his
administrative remedies as to this claim, and thus denied it. On appeal, Diaz does not dispute the
district court’s finding.

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acknowledgment form, Holder maintained that Diaz was required to call the BOP,

rather than remaining in the community for over two years. Holder further stated that

for the time that Diaz remained in the community, he was no longer classified as

being in “official detention,” and was therefore not entitled to credit for time spent

at liberty. Finally, Holder alleged that Diaz provided no evidence supporting the

claims that he did not remember signing the acknowledgment form and that he did not

speak, read, or write English.

       The district court noted that, at the time of its ruling, we had not adopted the

doctrine of credit for time spent at liberty. The court further found that under the

totality of the circumstances, it was clear that even if the doctrine was available, it did

not apply to Diaz, who the district court determined was at least partially responsible

for his erroneous liberty. This conclusion was based on the district court’s finding

that Diaz either knew or should have known that at the time of his release from

Louisiana state custody, just over a year after imposition of his federal sentence, he

had not satisfied the 15-year federal sentence, and his failure to discuss this with the

authorities when he was released. The district court also found Diaz’s presumption

that he had “won” a federal appeal to be unreasonable, and highlighted Diaz’s failure

to present any evidence of a legitimate basis for such a belief. Thus, based on the




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totality of the circumstances, the court denied Diaz’s § 2241 petition for a writ of

habeas corpus with prejudice. This appeal followed.

       In United States v. Barfield, 396 F.3d 1144 (11th Cir. 2005), we recently noted

that “prior precedent sets out the general rule that a delay in the commencement of

a sentence does not, by itself, constitute service of that sentence.” Id. Thus, we

concluded, because the commencement of Barfield’s sentence was delayed, she was

not entitled to credit for time spent at liberty. Id. at 1148. We observed that the case

did not present the issue of “whether a defendant who was incarcerated, released in

error, and then reincarcerated, should receive credit for the time . . . spent . . . at

liberty.” Id. at 1148 n. 6; see also Little v. Holder, 396 F.3d 1319 (11th Cir. 2005).

       Here, the district court found that under the totality of the circumstances, Diaz

was at least partially responsible for his time spent at liberty, and thus was not entitled

to credit, even if it was available, because Diaz knew or should have known that his

release from Louisiana state custody was not a release from federal custody, nor a

satisfaction of the 15-year federal sentence, for which he had served just over one

year. On this record, the district court’s conclusion, based on the totality of the

circumstances, including its finding concerning Diaz’s knowledge or imputed

knowledge, supports denying relief. Not only should Diaz have known, but also as

found by the district court, his failure to discuss his situation with the authorities

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when he was released was unreasonable, as was his claimed belief that he had won

a federal appeal -- he presented no evidence to support this contention and our review

of the record has revealed none.

      We can find no clear error in the district court’s factual findings, nor did it

incorrectly apply the established law of this Circuit. Accordingly, we affirm the

denial of Diaz’s § 2241 petition.

      AFFIRMED.




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