[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 03-13134 January 18, 2005
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 02-00218 CV-OC-10-GRJ
STEVEN BYRON LITTLE,
Petitioner-Appellant,
versus
CARLYLE HOLDER, Warden,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(January 18, 2005)
Before BLACK, RONEY and ALARCÓN*, Circuit Judges.
BLACK, Circuit Judge:
*
Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Circuit, sitting
by designation.
Appellant Steven Little appeals the district court’s denial of his petition for
writ of habeas corpus under 28 U.S.C. § 2241. Little argues he is entitled to credit
against his federal sentence for the time he spent erroneously at liberty between
October 1995 and August 1999. We affirm the district court’s denial of Little’s
habeas petition.
I. BACKGROUND
In 1993, Little was serving a Florida state sentence. While he was serving
this state sentence, Little was temporarily released to federal custody to face
charges for using a firearm during a drug trafficking crime, in violation of 18
U.S.C. § 924(c). On November 3, 1993, Little pleaded guilty to the federal
charges and was sentenced to five years of imprisonment followed by three years
of supervised release. Although the federal judgment and commitment order did
not specify whether Little’s federal sentence was to run consecutively or
concurrently with his Florida state sentence, Little has conceded it was to run
consecutively.
After his sentencing on the federal charges, Little was returned to the
custody of the Florida Department of Corrections to serve the remainder of his
state sentence. Little received credit against his state sentence for the time he was
temporarily in federal custody. On October 27, 1995, Little’s state sentence
2
expired, and he was released from state custody. Because the United States
Marshals Service (Marshals Service) never lodged a detainer with the state, federal
authorities were not notified when Little was released by the Florida Department
of Corrections.1 Little remained at liberty until August 6, 1999, when he was
arrested on new state charges—a period of nearly four years. Little was convicted
on those charges and remained incarcerated in state prison until April 11, 2001.
During Little’s second state sentence, the Marshals Service lodged a
detainer with the state concerning his outstanding federal sentence. Accordingly,
when the second state sentence expired in April 2001, Little was taken into federal
custody to begin service of his 1993 federal sentence. Little’s federal sentence
was computed as beginning on April 11, 2001.
On July 29, 2002, after exhausting his administrative remedies, Little filed a
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Little argues
because his erroneous release was due to negligence by the Marshals Service, the
Bureau of Prisons should have awarded him credit against his federal sentence for
the time he spent at liberty following his release from state custody in October
1
While serving his state term of imprisonment, Little asked the state authorities several
times whether the Marshals Service had lodged a detainer for his federal sentence. The state
authorities consistently informed Little that no detainer had been filed.
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1995. Little claims that, if properly credited, his federal sentence is satisfied and
he is entitled to immediate release.
The district court denied Little’s habeas petition, finding he was not entitled
to credit for time at liberty. This appeal followed.
II. STANDARD OF REVIEW
In reviewing the district court’s denial of a habeas corpus petition, we
review questions of law de novo and the court’s findings of fact for clear error.
Hurley v. Moore, 233 F.3d 1295, 1297 (11th Cir. 2000).
III. DISCUSSION
In this case, we are asked to decide whether Little should be granted credit
against his federal sentence for the nearly four years he spent at liberty after his
release from state custody in October 1995. We recently held that based on our
prior precedent, a convicted person “who has yet to serve any part of her sentence,
is not entitled to credit for time spent erroneously at liberty when there is merely a
delay in executing her sentence.” United States v. Barfield, 11th Cir., 2004, __
F.3d __ (No. 03-14077). The Barfield decision was based on our holdings in Scott
v. United States, 434 F.2d 11 (5th Cir. 1970), and United States ex rel. Mayer v.
4
Loisel, 25 F.2d 300 (5th Cir. 1928).2 In those cases, we explained a delay in the
commencement of a sentence cannot, by itself, constitute service of that sentence.
See Scott, 434 F.2d at 23 (“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.”); Mayer, 25 F.2d at 301 (“Mere lapse of time without the appellant undergoing
the imprisonment to which she was sentenced did not constitute service of the
sentence, which remained subject to be enforced . . . .”).3
We recognize some courts grant credit for time at liberty to prisoners who
have been forced to serve their sentences in installments through a series of
releases and reincarcerations. See, e.g., United States v. Melody, 863 F.2d 499,
504 (7th Cir. 1988) (discussing the “common law rule that a defendant ordinarily
cannot be required to serve his sentence in installments—that is, a prisoner
normally should serve his sentence continuously once he is imprisoned”); United
2
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
close of business on September 30, 1981.
3
Moreover, the Fifth Circuit has, in a recent decision, similarly relied on Scott and Mayer
in holding prisoners cannot receive credit for time at liberty when the commencements of their
sentences have only been delayed. Leggett v. Fleming, 380 F.3d 232, 234–36 (5th Cir. 2004).
5
States v. Martinez, 837 F.2d 861, 865 (9th Cir. 1988) (“Traditionally, 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.”) (citations
omitted); White v. Pearlman, 42 F.2d 788, 789 (10th Cir. 1930) (“[A prisoner]
cannot be required to serve [his] sentence in installments.”). Little, however, has
not been forced to serve his federal sentence in installments. Rather, the
commencement of his federal sentence was merely delayed. Little has served his
federal sentence continuously and without any interruptions since it began on
April 11, 2001.4 Thus, we do not decide the issue of whether a defendant who has
been subjected to installment service is entitled to credit for time at liberty.
Because the federal sentence in this case has merely been delayed, it falls
squarely within our holding in Barfield. Under Barfield, Little is not entitled to
credit for the time he spent erroneously at liberty because a delay in the
commencement of a sentence does not, by itself, constitute service of that
sentence. United States v. Barfield, 11th Cir., 2004, __ F.3d __ (No. 03-14077).
4
Although Little was temporarily in federal custody in 1993 and early 1994, his federal
sentence did not begin at that time. As explained above, Little was only in federal custody at that
time to face the federal firearm charges. After sentencing, he was returned to state custody for
completion of his first state sentence. Little received full credit against his state sentence for the
time during which he was temporarily in federal custody. Moreover, Little has conceded his
federal sentence was to run consecutively to his first state sentence. The record, therefore,
demonstrates Little’s federal sentence was properly computed as commencing on April 11, 2001.
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IV. CONCLUSION
We hold Little is not entitled to credit the nearly four years he spent at
liberty against his federal sentence. Without such credit, Little is not entitled to
immediate release and must fulfill the remainder of his federal sentence for use of
a firearm during a drug trafficking crime. Accordingly, we affirm the district
court’s denial of Little’s habeas petition.
AFFIRMED.
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