     Case: 17-40970      Document: 00514595656         Page: 1    Date Filed: 08/10/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals
                                                                                Fifth Circuit

                                      No. 17-40970                            FILED
                                                                        August 10, 2018
                                                                         Lyle W. Cayce
ERWIN EUGENE SEMIEN,                                                          Clerk

                     Petitioner-Appellant

v.

UNITED STATES OF AMERICA,

                     Respondent-Appellee


                  Appeals from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:15-CV-257


Before DAVIS, JONES, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Erwin Eugene Semien appeals the denial of his habeas corpus petition
under 28 U.S.C. § 2241. He contends that the district court erred because:
(1) he was entitled to a hearing for revocation of supervised release before
returning to federal custody; (2) he was entitled to credit against his federal
sentence for time spent at liberty after his erroneous release because he was
subject to a federal detainer; (3) he was entitled to credit against his federal
sentence for time spent at liberty after his erroneous release because the error


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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was caused by the Marshals Service; and (4) the district court abused its
discretion by denying him an evidentiary hearing.          Finding no error, we
AFFIRM.
                              BACKGROUND
      In December 2005, Erwin Eugene Semien was charged via indictment in
the Eastern District of Texas with conspiracy to possess with the intent to
distribute less than 500 grams of cocaine, possession with the intent to
distribute less than 500 grams of cocaine, possession with the intent to
distribute less than 50 grams of methamphetamine, and possession of a
firearm by a felon. At the time of his federal indictment, Semien was being
held by Texas authorities for a parole violation.      On December 29, 2005,
Semien was transferred to the custody of the United States Marshals Service
pursuant to a writ of habeas corpus ad prosequendum.
      Semien was convicted by a jury on all federal charges, and on
December 20, 2006, he was sentenced to a total of 115 months of imprisonment,
to be served consecutively to any future parole revocation. This court affirmed
the conviction and sentence. United States v. Semien, 248 F. App’x 615 (5th
Cir. 2007).
      Semien was returned to state custody on January 4, 2007, and his state
parole was revoked on April 18, 2007. Semien was erroneously released from
state custody on February 13, 2009.
      Semien was arrested by the Marshals Service on May 2, 2014. After
exhausting his administrative remedies, Semien filed the instant petition for
a writ of habeas corpus under 28 U.S.C. § 2241, asserting that he was entitled
to credit towards his federal sentence from February 13, 2009, the date he was
first erroneously released by the Texas authorities, to May 2, 2014, the date he
was taken into federal custody.



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      The magistrate judge (“MJ”) recommended denying Semien’s § 2241
petition. The MJ determined that Semien’s federal sentence commenced on
May 2, 2014, and concluded that Semien was not entitled to credit for the time
he was at liberty. The MJ found that the Marshals Service did not err “in
awaiting notice from the Texas prison system after filing a detainer asking the
state authorities to notify them upon [Semien’s] release.” To the extent that
Semien sought relief from his conviction and sentence under 28 U.S.C. § 2255,
the MJ concluded that the motion was an unauthorized successive motion over
which the court lacked jurisdiction.
      Through    counsel,   Semien     objected     to   the    MJ’s    report    and
recommendation.      Counsel asserted that there was no evidence from the
Government to show the status of the federal detainer. His objections included
a request for a hearing to resolve how Semien was released or to clarify the
status of the detainer.     Semien also filed pro se objections to the MJ’s
recommendation. He alleged that the record demonstrated an error by the
Government that led to his release.        Specifically, he noted that the USM
number on his judgment was incorrect and belonged to a different federal
prisoner. He argued that, therefore, the erroneous release was the fault of
governmental authorities and he was entitled to credit for his time spent at
liberty. He also asserted that his term of supervised release commenced upon
his release from state custody and that his supervised release was revoked
without a hearing.
      The district court overruled Semien’s objections and found that there
was “no evidence the authority seeking to enforce the sentence erred.” The
court stated that Semien’s assertions otherwise were “pure speculation.”
Accordingly, the court adopted the report of the MJ and denied Semien’s § 2241
petition. Semien filed a timely notice of appeal.



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                           STANDARD OF REVIEW
      In an appeal from the denial of habeas relief, this court reviews a district
court’s findings of fact for clear error and issues of law de novo. Moody v.
Johnson, 139 F.3d 477, 480 (5th Cir. 1998). This court reviews the denial of
an evidentiary hearing for abuse of discretion. United States v. Bartholomew,
974 F.2d 39, 41 (5th Cir. 1992).
                                   DISCUSSION
      Revocation Hearing
      Semien first argues that he was entitled to a revocation hearing before
ending his supervised release. He was not. Semien was released from state
custody on February 13, 2009, not federal custody. For this reason, Semien’s
time at liberty was not a term of supervised release that was later revoked.
See 18 U.S.C. § 3624(e). Without a term of supervised release, Semien was not
entitled to a revocation hearing.
      Official Detention
      Semien further contends that he is entitled to sentence credit for the
time he spent at liberty because he was subject to a federal detention order and
a sentencing order pursuant to 18 U.S.C. §§ 3142(e) & 3143(a) (respectively),
which constituted “official detention” under 18 U.S.C. § 3585(b). He also cites
the Supreme Court’s holding in Reno v. Koray, 515 U.S. 50, 115 S. Ct. 2021
(1995) as further support for receiving a sentence credit.
      Both aspects of Semien’s argument are mistaken. Section 3142(e) is
inapplicable here, as it addresses “detention of [a] person before trial.”
18 U.S.C. § 3142(e)(1). Further, Koray suggests that Semien is not entitled to
credit for his time spent at liberty because he was not subject to the Bureau of
Prison’s (“BOP”) control. The Court in Koray held that a defendant who spent
time at a community treatment center while “released on bail” was not



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officially detained “within the meaning of 18 U.S.C § 3585(b)” and therefore
“not entitled to a credit against his sentence of imprisonment.”           Koray,
515 U.S. at 65, 115 S. Ct. at 2029. The Court explained that “[a] defendant
who is ‘released’ is not in BOP’s custody” while “[a] defendant who is ‘detained,’
however, is completely subject to BOP’s control.” Id. at 63, 115 S. Ct. at 2028.
Accordingly, the fact that Semien was subject to detention and sentencing
orders does not entitle him to sentence credit for the time he spent at liberty
because he was not subject to BOP’s control.
      Government Error
      Semien next argues that he is entitled to sentence credit because there
is evidence that an error by the Government contributed to his mistaken
release. The error at issue is a typo in the final judgment from Semien’s
criminal case.   The judgment incorrectly notes Semien’s USM number as
“05696-078.” Semien’s actual USM number is 05695-078. He contends that
this incorrect number on the judgment led to his mistaken release. Semien
relies on this court’s opinion in Leggett v. Fleming, 380 F.3d 232 (5th Cir. 2004)
to bolster his claim for sentence credit.
      Leggett addressed a prisoner’s argument that he was entitled to sentence
credit after he was erroneously released from Texas state prison because his
federal detainer did not travel with him when he was moved between facilities.
Leggett, 380 F.3d at 233-34. This court recognized that “[w]e 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.” Id. at 234 (citing Thompson v. Cockrell, 263 F.3d 423,
427 (5th Cir. 2001)). The court went on to note that “we have also held that a
delay in the commencement of a sentence by itself does not constitute service
of that sentence.” Id. (citing Scott v. United States, 434 F.2d 11, 23 (5th Cir.



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1970); United States ex. rel. Mayer v. Loisel, 25 F.2d 300, 300 (5th Cir. 1928)).
Leggett also noted “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.”       Id. at 234 n.3 (citing Shields v. Beto,
370 F.2d 1003, 1005-06 (5th Cir. 1967)).
      This court’s precedents before Leggett indicate that Semien is not
entitled to sentence credit for the government’s apparent mistake. The opinion
Leggett cites for the proposition that a governmental error could entitle a
prisoner to sentence credit if that error prevented them from serving their
sentence, Thompson, is inapplicable. The court in Thompson addressed facts
distinct from those in the instant case: Thompson was erroneously released
early from state prison and was then denied sentence credit by the Texas Board
of Pardons and Paroles for the time he spent at liberty. Thompson, 263 F.3d
at 424. The court held that “the Due Process Clause does not by itself prohibit
states from denying prisoners calendar time after an erroneous release,” but
then found that “[t]he law in Texas from the time of Thompson’s offense to [the
time of the decision] require[d] the State to credit Thompson for time after an
erroneous release, so long as [he] was not at fault.” Id. at 426-27. The instant
case does not involve any state-law interest in sentence credit.
      This court’s decisions in Shields v. Beto and Piper v. Estelle, 485 F.2d 245
(5th Cir. 1973) provide the framework to analyze Semien’s claim. This court
held in Shields that Texas waived jurisdiction to enforce Shields’s sentence
because Texas “showed no interest in the return of the prisoner, either by
agreement between the sovereigns, by detainer, or any other affirmative
action.” Shields, 370 F.2d at 1005-06. “The lack of interest in Shields by the
State of Texas . . . [for] a lapse of more than 28 years, was equivalent to a
pardon or commutation of his sentence and a waiver of jurisdiction.” Id. at



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1006. This court in Piper explained that for waiver under Shields “it is not
sufficient to prove official conduct that merely evidences a lack of eager pursuit
or even arguable lack of interest.” Piper, 485 F.2d at 246. Rather, the prisoner
must show that “the waiving state’s action [was] 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.” Id.
      Neither Shields nor Piper suggest that Semien is entitled to a sentence
credit for the time he spent at liberty. The five years and three months that
Semien spent at liberty before the Marshals Service arrested him is a far cry
from the twenty-eight years that passed before Texas attempted to enforce
Shields’s sentence after he was arrested in another state. Indeed, the delay in
enforcing Semien’s sentence is more akin to the twenty-seven-month delay in
imprisonment at issue in Scott, which “[did] not constitute service of that
sentence.” Scott, 434 F.2d at 23. The federal government did show interest in
Semien’s return; the Marshals took the affirmative action of arresting him in
2014. Furthermore, a typo on Semien’s final judgment that arguably led to his
erroneous release for 63 months before serving his federal sentence is neither
“so affirmatively wrong” nor “so grossly negligent that it would be
unequivocally inconsistent with ‘fundamental principles of liberty and justice’
to require” Semien to serve his sentence now.          Piper, 485 F.2d at 246.
Accordingly, Semien is not entitled to sentence credit for the government’s
alleged error regarding his USM number.
      Evidentiary Hearing
      Finally, Semien appears to argue that the district court abused its
discretion in denying him an evidentiary hearing for his habeas petition. A
federal habeas court is not required to conduct an evidentiary hearing.



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McDonald v. Johnson, 139 F.3d 1056, 1060 (5th Cir. 1998). “[T]he burden is
on the habeas corpus petitioner to allege facts which, if proved, would entitle
him to relief.” Ellis v. Lynaugh, 873 F.2d 830, 840 (5th Cir. 1989) (citation
omitted). Here, Semien contended that the government’s error on his final
judgment, and possibly on his detainer, contributed to his erroneous release.
As discussed above, Semien would not be entitled to the relief he seeks even if
he proved that the government’s error contributed to his release. Accordingly,
the district court did not abuse its discretion in denying Semien an evidentiary
hearing.
                               CONCLUSION
      For the foregoing reasons, we AFFIRM.




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