                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                      December 15, 2014

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
JERRY LOUIS HUGHES,

             Petitioner - Appellant,

v.                                                        No. 14-1297
                                                 (D.C. No. 1:14-CV-01442-LTB)
JOHN OLIVER, Warden,                                        (D. Colo.)
USP Florence-High,

             Respondent - Appellee.


                            ORDER AND JUDGMENT*


Before HOLMES, BACHARACH, and McHUGH, Circuit Judges.


      Jerry Louis Hughes, a federal inmate proceeding pro se, appeals the dismissal

of his 28 U.S.C. § 2241 petition, claiming his due process rights were violated when

he was mistakenly released from custody and reincarcerated after spending almost a

year at liberty. Mr. Hughes also contends the government should be estopped from




*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
enforcing the remainder of his sentence. We have jurisdiction under 28 U.S.C.

§ 1291 and affirm the dismissal of Mr. Hughes’ habeas petition.

                                            I

      On October 4, 2004, Mr. Hughes was sentenced to 135 months in prison after

pleading guilty to armed bank robbery and associated offenses. The government

appealed that sentence, and on January 30, 2006, Mr. Hughes was resentenced to 346

months in prison. Thereafter, according to Mr. Hughes, prison officials repeatedly

informed him that he would be released in 2012 and, consistent with that

representation, released him on May 14, 2012. But a year later, on May 29, 2013,

Mr. Hughes appeared at a supervised-release revocation hearing and was told that he

had been released by mistake. He was remanded to federal custody and continues to

serve out the remainder of his sentence.

      In his habeas petition, Mr. Hughes claims the government violated his due

process rights and should be equitably estopped from enforcing the rest of his

sentence. The district court dismissed the petition, however, ruling that these

arguments were foreclosed by White v. Pearlman, 42 F.2d 788, 789 (10th Cir. 1930),

which acknowledged the government’s power to recommit a mistakenly released

inmate whose sentence would not have expired if he had remained in confinement.

The district court concluded that since Mr. Hughes’ sentence would not have expired

during the year he had been mistakenly released from custody, there was no

constitutional violation. The court also observed that Mr. Hughes could have sought


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credit for the time he spent at liberty, but he did not request that relief; instead, he

simply requested to be released altogether.

       On appeal, Mr. Hughes maintains that his due process rights were violated and

the government should be estopped from enforcing the rest of his sentence. We

review the dismissal of Mr. Hughes’ habeas petition de novo, see Weekes v. Fleming,

301 F.3d 1175, 1176-77 (10th Cir. 2002), and find both arguments unavailing.

                                             II

       A. Due Process

       Mr. Hughes’ due process claim is premised on executive action of government

officials. Such action violates due process “‘when it can properly be characterized as

arbitrary, or conscience shocking, in a constitutional sense.’” Espinoza v. Sabol,

558 F.3d 83, 87 (1st Cir. 2009) (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833,

847 & n.8 (1998)). At least one court has observed that mistaken releases resulting

in reincarceration occur “too frequently . . . to raise any presumption of arbitrariness

in the constitutional sense,” Hawkins v. Freeman, 195 F.3d 732, 744 (4th Cir. 1999)

(en banc) (internal quotation marks omitted); see also Vega v. United States,

493 F.3d 310, 317 (3d Cir. 2007) (finding no due process violation based on

erroneous release and reincarceration, and looking to common law for right to credit

for time spent erroneously at liberty). Indeed, we recognized long ago that “[t]here is

no doubt of the power of the government to recommit a prisoner who is released or

discharged by mistake, where his sentence would not have expired if he had remained


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in confinement.” White, 42 F.2d at 789. Mr. Hughes’ sentence would not have

expired if he had remained in confinement, and thus his due process rights were not

implicated when the government recommitted him.

      Nevertheless, Mr. Hughes insists that the government’s apparent negligence

justifies his release. He cites cases evaluating whether there was government “action

‘so affirmatively wrong or [] 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.’”

Johnson v. Williford, 682 F.2d 868, 873 (9th Cir. 1982) (quoting Piper v. Estelle,

485 F.2d 245, 246 (5th Cir. 1973) (per curiam)). The problem with this argument,

however, is that the standard that Mr. Hughes relies upon “fails to embody the full

stringency of the [Lewis] standard’s requirement that to be ‘conscience-shocking,’

‘arbitrary in the constitutional sense,’ an executive act must be not only ‘wrong,’ but

egregiously so by reason of its abusive or oppressive purpose and its lack of

justification by any government interest.” Hawkins, 195 F.3d at 744 (citing Lewis,

523 U.S. at 844-54).

      Mr. Hughes alleges that he was mistakenly released after prison officials gave

him incorrect information that he would be released in 2012. While this conduct may

suggest negligence, it does not manifest the type of conscience-shocking action

necessary to sustain his claim. See Espinoza, 558 F.3d at 90 (holding that

government mistake was “simply part of life” and did not suggest any “arbitrariness


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or capriciousness by any government actor”). Thus, Mr. Hughes cannot prevail on

his due process claim.

      B. Estoppel

      Mr. Hughes also contends the government should be equitably estopped from

enforcing the rest of his sentence. To prevail on this claim, Mr. Hughes must satisfy

the traditional elements of estoppel and also show “affirmative misconduct on the

part of the government; mere erroneous advice will not do.” Wade Pediatrics v.

Dep’t of Health & Human Servs., 567 F.3d 1202, 1206 (10th Cir. 2009) (internal

quotation marks omitted).1 On this score, Mr. Hughes’ claim fails because there was

no affirmative government misconduct here. Mr. Hughes alleges only that he was

given erroneous advice at his unit-team meetings, “which is . . . insufficient to

warrant estoppel against the government.” Id. at 1207; see also Heckler v. Cmty.

Health Servs. of Crawford Cnty., Inc., 467 U.S. 51, 64 (1984) (“The fact that [the

government agent’s] advice was erroneous is, in itself, insufficient to raise an

estoppel . . . .”). But see Johnson v. Williford, 682 F.2d 868, 872-73 (9th Cir. 1982)
1
      The traditional elements of estoppel are:

      (1) the party to be estopped must have known the facts; (2) that party
      must have intended that its conduct would be acted on or must have
      acted such that the party asserting estoppel had a right to believe it was
      so intended; (3) the asserting party must have been ignorant of the true
      facts; and (4) the asserting party must have relied on the other party’s
      conduct to his injury.

Wade Pediatrics v. Dep’t of Health & Human Servs., 567 F.3d 1202, 1206 (10th Cir.
2009).


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(holding, without discussing separate element of government misconduct, that

government was estopped from revoking parole of inmate who was incorrectly

advised at eight administrative reviews that he was eligible for parole). Accordingly,

Mr. Hughes cannot show that the government should be estopped from enforcing the

rest of his sentence.

       C. Possibility of a Credit for Time Spent Erroneously at Liberty

       Finally, it may be that Mr. Hughes is entitled to a credit on his sentence under

the common law doctrine of time spent erroneously at liberty. See White, 42 F.2d

at 789 (“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.”). But because Mr. Hughes does not raise that issue, we do

not decide it. Mr. Hughes asserts that the government should be precluded from

enforcing the rest of his sentence, and White forecloses that possibility.

                                           III

       The judgment of the district court is affirmed. Mr. Hughes’ motion to proceed

on appeal in forma pauperis is denied.

                                                 Entered for the Court


                                                 Carolyn B. McHugh
                                                 Circuit Judge




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