IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 96-20988
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
LATONYA MOORE,
Defendant-Appellee.
_______________________________________________________
Appeal from the United States District Court for
the Southern District of Texas
(H-CR-91-89-02)
_______________________________________________________
October 6, 1997
Before REAVLEY, BARKSDALE and STEWART, Circuit Judges.
REAVLEY, Circuit Judge:*
By this appeal the United States challenges a district court
order resentencing appellee Latonya Moore to a term of probation.
In 1991, Moore was convicted of interfering with a flight crew in
violation of 49 U.S.C. § 1472(j).2 She was sentenced to eight
months in prison and a three-year term of supervised release.
The court ordered Moore to surrender to a federal prison. On
*
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this opinion should not be published and is not precedent except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.
2
Recodified as 49 U.S.C. § 46504.
February 6, 1992, the court entered an order that granted Moore’s
motion to continue bail on appeal by staying the order of
surrender. The order provides that the order of surrender is
“stayed pending appeal.” The February 6 order imposed several
conditions of release, including a requirement that Moore
regularly report to the United States pretrial services agency.
Moore’s conviction was affirmed,3 and by order entered on
March 26, 1993, the district court granted a second motion to
continue bail pending Moore’s application for a writ of
certiorari. On May 4, 1993, the court entered a second order of
surrender, which it later vacated because the petition for writ
of certiorari was still pending.
On May 24, 1993, the Supreme Court denied Moore’s petition.
However, due to what the district court describes as a “breakdown
in the Clerk’s office,” a new order of surrender was not
forthcoming. Moore claims that she brought this oversight to the
government’s attention. Moore continued to report to pretrial
services as a condition of her release. Eventually the absence
of a new order of surrender was discovered and the district court
entered an order of surrender on August 6, 1996.
Moore then filed a motion “for credit for time spent
erroneously at liberty,” or in the alternative for resentencing
pursuant to 28 U.S.C. § 2255. After a hearing, the court vacated
3
United States v. Hicks, 980 F.2d 963 (5th Cir. 1992).
2
its original sentence and imposed a sentence of probation. At
the hearing and in its order granting this relief, entered on
September 16, 1996, the court stated that the government’s delay
in executing the original sentence did not amount to a
constitutional violation. However, the court noted that Moore
“has kept out of trouble” and “has complied with the conditions
of supervised pretrial release without incident for the last four
years.” The court was of the view that “justice has been served
in this case.”
The district court had no authority to modify the original
sentence. Under 18 U.S.C. § 3582, the court may not modify a
sentence once it has been imposed, except (1) upon motion of the
Bureau of Prisons requesting a reduction in the sentence, (2) on
grounds permitted by Fed. R. Crim. P. 35, and (3) on grounds that
the Sentencing Commission has lowered the applicable sentencing
range subsequent to the sentence.4 Rule 35 authorizes reduction
of a sentence (1) after remand for resentencing by the court of
appeals, (2) for substantial assistance to the government, or (3)
to correct an “arithmetical, technical, or other clear error”
within seven days of the original sentence. This case falls
within none of the statutory grounds for modifying a sentence.
Moore argues that she was entitled to habeas relief under 28
U.S.C. § 2255. That statute authorizes a district court to
4
United States v. Bridges, 116 F.3d 1110, 1112 (5th Cir.
1997).
3
resentence a “prisoner in custody”5 if it finds that “the
sentence imposed was not authorized by law or otherwise open to
collateral attack, or that there has been such a denial or
infringement of the constitutional rights of the prisoner as to
render the judgment vulnerable to collateral attack . . . .” We
have stressed that relief under § 2255 “is reserved for
transgressions of constitutional rights and for a narrow range of
injuries that would not have been raised on direct appeal and
would, if condoned, result in a complete miscarriage of
justice.”6
In our view, the government’s delay in executing Moore’s
sentence, while regrettable, does not rise to the level of a
constitutional violation or a “complete miscarriage of justice”
required for § 2255 relief. In a somewhat analogous situation,
the Supreme Court has held that the government can
constitutionally issue a warrant for a parole violation, and wait
5
We assume without deciding that because Moore was under
supervised release at the time she filed her motion she meets the
“in custody” requirement for a petitioner seeking relief under §
2255. See Garlotte v. Fordice, 115 S. Ct. 1948, 1951 (1995)
(“Maleng recognized that we had ‘very liberally construed the ‘in
custody’ requirement for purposes of federal habeas,’ but
stressed that the Court had ‘never extended it to the situation
where a habeas petitioner suffers no present restraint from a
conviction.’”) (quoting Maleng v. Cook, 490 U.S. 488, 492
(1989)).
6
United States v. Payne, 99 F.3d 1273, 1281 (5th Cir.
1996) (quoting United States v. Vaughn, 955 F.2d 367, 368 (5th
Cir. 1992)).
4
until the parolee has served a ten-year state court sentence
before executing the warrant.7 We have similarly held that a
delay of over three years in executing a warrant for revocation
of probation did not violate the probationer’s due process
rights.8
The Ninth Circuit recognizes a doctrine of “credit for time
at liberty,” under which “a convicted person is entitled to
credit against his sentence for the time he was erroneously at
liberty provided there is a showing of simple or mere negligence
on behalf of the government and provided the delay in execution
of sentence was through no fault of his own.”9 Under this
doctrine Moore might not be entitled to relief, since
“[t]raditionally, the doctrine of credit for time at liberty has
only been applied where a convicted person has served some part
of his sentence and then been erroneously released.”10
Regardless, our court has not embraced such a doctrine.
We did hold, in Shields v. Beto,11 that executing a sentence
after excessive delay can amount to a constitutional violation
7
Moody v. Daggett, 429 U.S. 78 (1976).
8
United States v. Fisher, 895 F.2d 208 (5th Cir. 1990).
9
United States v. Martinez, 837 F.2d 861, 865 (9th Cir.
1988).
10
Id.; but see Clark v. Floyd, 80 F.3d 371, 374 (9th Cir.
1996).
11
370 F.2d 1003 (5th Cir. 1967).
5
that entitles the petitioner to habeas corpus relief. In that
case, the State of Texas sentenced habeas petitioner Shields to
40 years imprisonment in 1933. In 1934, Shields was granted a
60-day furlough. Shields went to Louisiana to serve a sentence,
and Texas did not place a detainer on him at the Louisiana
prison. Shields was released from the Louisiana prison in 1944.
In 1962, 28 years after his furlough, he was convicted on a new
charge in Texas and ordered to serve that new sentence plus the
39 years remaining on his 1933 conviction. After noting “a lapse
of more than 28 years,” and that Texas had “showed no interest in
the return of the prisoner, either by agreement between the
sovereigns, by detainer, or any other affirmative action taken by
it following his release in Louisiana,” we held that requiring
Shields to serve the remaining time on the 1933 conviction would
amount to a denial of due process.12
We have since made clear, in distinguishing Shields time and
again,13 that our holding in that case is a narrow one based on
the extreme facts presented. For example, in Piper v. Estelle,14
12
Id. at 1006.
13
E.g., Fabian v. Reed, 714 F.2d 39, 41 (5th Cir. 1983);
Holtzinger v. Estelle, 488 F.2d 517, 518 (1974); Mills v. Beto,
477 F.2d 124, 125 (5th Cir. 1973); Weathers v. Henderson, 480
F.2d 559, 560 n.1 (5th Cir. 1973); Dorrough v. Texas, 440 F.2d
1063, 1064 (5th Cir. 1971); Hanks v. Wideman, 434 F.2d 256, 257
(5th Cir. 1970); Bilton v. Beto, 403 F.2d 664, 665 (5th Cir.
1968).
14
485 F.2d 245 (5th Cir. 1973).
6
the habeas petitioner was convicted on federal and state charges.
The crimes were committed while the petitioner was on parole.
Texas revoked his parole and released him to federal custody to
serve his federal sentence. Texas did not file a detainer to
return him to state custody until 22 months after his parole was
revoked. We rejected his argument that under Shields Texas had
waived jurisdiction over the petitioner. We interpreted Shields
as holding that “it is not sufficient to prove official conduct
that merely evidences a lack of eager pursuit or even arguable
lack of interest. Rather the waiving state’s action must be 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.”15
The facts in the pending case do not demonstrate conduct so
“affirmatively wrong” or “grossly negligent” that requiring Moore
to serve her original sentence would amount to a due process
violation or a complete miscarriage of justice. The court issued
three separate orders of surrender, and the government continued
throughout the relevant period to monitor, through pretrial
services, Moore’s whereabouts and compliance with the terms of
her release. The government did not demonstrate such an extreme
15
Id. at 246.
7
lack of interest in carrying out the original sentence that we
can say it waived jurisdiction over Moore.
For the foregoing reasons, the September 16, 1996 order
granting the motion for resentencing and the amended judgment
resentencing Moore are VACATED.
The court requests the United States Attorney to call
attention of the responsible persons, in the Bureau of Prisons or
other agency, to the consequences of the breakdown in the
district court and the reason to expedite consideration of
earliest release of Latonya Moore.
8