                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                     REVISED AUGUST 17, 2004
                                                               August 3, 2004
                  UNITED STATES COURT OF APPEALS
                       For the Fifth Circuit              Charles R. Fulbruge III
                                                                  Clerk
                           No. 03-10454



                      MICHAEL BRETT LEGGETT,

                                                Petitioner/Appellant,

                              VERSUS

     L.E. FLEMING, Warden, Federal Medical Center-Fort Worth


                                                 Respondent/Appellee



          Appeal from the United States District Court
         For the Northern District of Texas, Fort Worth



Before BENAVIDES, STEWART, and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

     Michael Brett Leggett appeals the district court’s decision

denying habeas relief under 28 U.S.C. § 2241.    He contends that his

sentence for being a felon in possession of a firearm should be

reduced because he is entitled to a credit against his sentence for

(1) time spent at liberty and (2) time spent in state prison prior

to the commencement of his federal sentence.     We affirm.

                                I.

     On September 17, 1997, Leggett was indicted in the United

States District Court for the Western District of Texas for being

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a felon in possession of a firearm.         When indicted, Leggett was in

a Midland County, Texas jail for a probation violation. On January

8, 1998, he was transferred to the custody of the United States

Marshals pursuant to a writ of habeas corpus ad prosequendum in

order to stand trial for the federal charge.                Leggett pleaded

guilty and was sentenced to 70 months imprisonment.

       After sentencing, on March 12, 1998, Leggett was returned to

Midland County jail.        When transferring custody, the Marshals

Service    lodged   a   detainer   with    the   Midland   County   Sheriff’s

Department.     The detainer stated that Leggett was a sentenced

federal prisoner who should not be released when his state sentence

ended and asked for notification when Leggett’s sentence was at an

end.    The Midland County Sheriff’s office acknowledged receipt of

the detainer.

       On March 20, 1998, the State of Texas revoked Leggett’s

probation, and he was transferred to the Texas Department of

Criminal Justice (“TDJC”) on April 2, 1998.          Although the detainer

was supposed to travel with him to the new facility, it apparently

did not.   On July 10, 1998, Leggett was released from state prison,

but the Marshals Service was not notified of his release.               Upon

release, Leggett did not contact the Marshals Service or any other

federal authority to inquire about the status of his sentence.

       Leggett was free from July 1998 until March 1999, when he was

arrested again on a fugitive warrant for violating his Texas

parole.    He was released in June 2000, but the TDJC again failed to

                                     -2-
notify the Marshals Service of Leggett’s release.     Leggett then

remained free until September 11, 2001, when the Marshal’s Service

arrested him so that his federal sentence could be enforced.

     After beginning his federal sentence, Leggett asked the Bureau

of Prisons (“BOP”) through its administrative process for credit on

his sentence for the period from July 10, 1998, the time he was

initially released from state prison, until September 11, 2001, the

time he began his sentence in federal prison.       The BOP denied

relief.    On February 27, 2003, Leggett filed a habeas petition

under 28 U.S.C. § 2241 in the United States District Court for the

Northern District of Texas arguing that the BOP’s execution of his

sentence unconstitutionally violated his due process rights.    The

court denied his habeas petition, and Leggett timely appealed.

                                 II.

     Leggett contends that the district court erred in not finding

that he is entitled to credit against his federal sentence for: (1)

the time spent at liberty after being erroneously released by state

authorities and (2) the time spent in state custody after being

sentenced in federal court.   When considering the denial of habeas

relief, we review a district court’s findings of fact for clear

error and issues of law de novo.1

     Leggett argues that his due process rights were violated

because he was not granted a credit against his sentence for the


     1
          See Moody v. Johnson, 139 F.3d 477, 480 (5th Cir. 1998).

                                 -3-
time spent erroneously at liberty due to the failure of state

officials to notify the Marshal of his release from state custody.

Therefore, he asks that we grant habeas relief and adjust his

sentence to give him credit for the time from July 10, 1998, when

he was released from state custody, until September 11, 2001, when

he commenced serving his federal sentence.

     We have previously held that in some circumstances a prisoner

may receive credit against his sentence if the error of government

officials prevented the prisoner from serving his sentence.2   But

we have also held that a delay in the commencement of a sentence by

itself does not constitute service of that sentence.3   Therefore,

based on prior precedent, Leggett is not entitled to a credit

against his sentence for the time served prior to the commencement


     2
        See Thompson v. Cockrell, 263 F.3d 423, 427 (5th Cir.
2001)(holding that a Texas state prisoner had a liberty interest in
the calendar time following his erroneous release).
     3
        See Scott v. U.S., 434 F.2d 11, 23 (5th Cir. 1970)(“This
Court holds that the mere lapse of time that occurred here [27
months], without petitioner undergoing any actual imprisonment to
which he was sentenced ... does not constitute service of that
sentence, and this sentence remains subject to be executed,
notwithstanding the delay in executing it.”); U.S. ex rel. Mayer v.
Loisel, 25 F.2d 300, 300 (5th Cir. 1928)(“Mere lapse of time
without the appellant undergoing the imprisonment to which she was
sentenced does not constitute service of the sentence....”).
      It is true that in certain situations the government may
waive jurisdiction of its right to execute a sentence if it
significantly delays the enforcement of that sentence. See, e.g.,
Shields v. Beto, 370 F.2d 1003, 1005-06 (5th Cir. 1967)(holding
that the state had waived jurisdiction of its right to execute its
sentence where it had waited 28 years to enforce that right). But
Leggett has not argued that the BOP waived its right to enforce his
federal sentence. Thus, we need not consider that argument here.

                               -4-
of his sentence.4

     Leggett contends that the Ninth Circuit’s decision in Clark v.

Floyd5 compels us to grant him credit for the time he spent

erroneously at liberty prior to the commencement of his sentence.

In Clark, the petitioner, while on probation for federal drug

offenses, was convicted in Montana on methamphetamine charges and

began serving a 40-year sentence in state prison.6     The federal

district court revoked Clark’s probation and sentenced him to three

consecutive five-year terms to be served after his state sentence.7

The Marshals Service filed a detainer directing the state officials

to notify them when Clark was released, but state officials did not

notify the Marshals Service when Clark was released after five

years in state custody.8   Clark was eventually taken into federal



     4
        Some circuits have adjusted the commencement date of a
prisoner’s sentence when there is evidence that Marshals Service
has violated a judge’s Order of Commitment. U.S. v. Croft, 450
1094, 1099 (6th Cir. 1971); Smith v. Swope, 91 F.2d 260, 262 (9th
Cir. 1937). This court has not yet decided this question, although
a panel of this court has previously stated that if a Marshal
flagrantly disobeyed a commitment order, this court might find that
the sentence began before the prisoner actually commenced his
sentence.   Causey v. Civiletti, 621 F.2d 691, 694-95 (5th Cir.
1980). Regardless, because there is no evidence in this record
that the Marshals Service has disobeyed any commitment order,
Leggett is not entitled to relief on this basis.
     5
         80 F.3d 371 (9th Cir. 1996).
     6
         Id. at 372.
     7
         Id. at 372-73.
     8
         Id. at 373.

                                -5-
custody three years later to begin serving his federal sentence. 9

     Clark filed a habeas petition seeking credit for the three

years he was erroneously at liberty.10 The Ninth Circuit, reversing

the district court, granted relief.11 The court held that Clark was

entitled    to   a   credit   against     his   sentence   for   time   spent

erroneously at liberty even though he had not yet begun his federal

sentence because he was released through the inadvertence of agents

and through no fault of his own.12              Judge Fernandez dissented,

arguing that Clark should not be able to take advantage of the

errors of state officials because he did not attempt to notify

federal officials of his release and there was no evidence that any

federal official was at fault.13

     Although the Clark decision is factually similar to the case

at hand, it conflicts with our circuit precedent.                 The Clark

court’s ruling is based on the Ninth Circuit’s prior decision in

Smith v. Swope, in which that court granted time credit to a

prisoner because he was “entitled to serve his time promptly.”14

As stated above, this court has expressly held that a prisoner is


     9
          Id.
     10
           Id. at 372.
     11
           Id.
     12
           Id.
     13
           Id. at 374-75.
     14
           91 F.2d 260, 262 (9th Cir. 1937).

                                    -6-
not entitled to a credit when there is merely a delay in the

execution   of   one’s   sentence.15     Therefore,   circuit   precedent

forecloses us from relying on Clark to grant a petitioner credit

for time spent at liberty before commencement of a sentence.

     Moreover, even if our circuit precedent allowed use to use

Clark, we would still decline to do so.        As the dissent in Clark

notes, the errors of state officials should not impact a prisoner’s

service of his federal sentence.         Here, the Marshals Service did

not act erroneously in awaiting notice from the Texas prison system

after filing a retainer asking the state authorities to notify them

upon Leggett’s release.       Where 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. Therefore, we conclude that Leggett is not entitled

to a credit against his federal sentence for the time prior to the

commencement of his sentence on September 11, 2001.

     Leggett also claims that he is entitled to credit against his

sentence for the time spent in state custody.         But Leggett did not

ask the district court for relief on this ground.        Rather, he only

asked for credit for the time that he was erroneously at liberty.

Because Leggett has raised this issue for the first time on appeal,




     15
          Mayer, 25 F.2d at 301; Scott, 434 F.2d at 22-23.

                                   -7-
we decline to consider it.16

                               III.

     Because Leggett has not shown that he is entitled to a credit

against his sentence, we AFFIRM the district court’s decision to

deny habeas relief.




     16
        U.S. v. Smith, 915 F.2d 959, 964 (5th Cir. 1990)(“If the
defendant in habeas proceedings did not raise his claims before the
district court, we do not consider them on appeal.”(citing Hobbs v.
Blackburn, 752 F.2d 1079, 1083 (5th Cir. 1985)).

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