dissenting:
Respectfully, I dissent.
Respondent Bandies was serving a state sentence for robbery with a deadly weapon, concurrently with a federal sentence already imposed. During respondent’s term of confinement at the federal prison at Lompoc, California, the Nevada Department of Prisons Officer, Mr. Demosthenes, declined to accept respondent as a concurrent service of sentence transfer due to space limitations. On May 10, 1984, Bandies was approved for federal parole as of November 20, 1986. Bandies wrote to Demosthenes, informing him that he would soon be referred for concurrent service of his sentence. Bandies received a reply that he was due for a Parole Board hearing on his Nevada sentence in November, 1986. •
On March 24, 1988, the United States Bureau of Prisons notified the State of Nevada Department of Prisons of Bandies’ anticipated date of release on parole and requested the Nevada Department of Prisons to take custody of Bandies on April 19, 1988. The Nevada Department of Prisons responded, stating that Bandies was discharged from his Nevada sentence on January 4, 1986, and that the State of Nevada Department of Prisons had no further interest in Bandies.
On April 13, 1988, the United States Bureau of Prisons informed Bandies that the State of Nevada no longer had any interest in him, and that his release date was set for June 1, 1988. Bandies was paroled on June 1, 1988 as scheduled. He registered as an ex-felon and resided openly in Las Vegas. According to the district court, Bandies had become “a worthwhile and productive member of society, gainfully employed, free from the use of drugs or alcohol, and conducting himself as a loving and responsible son and father, with plans to marry into a family to whom he had proved himself to be a responsible caring person.”1
On February 24, 1990, the Nevada Department of Prisons discovered their “mistake” and had Bandies arrested. Bandies brought a petition for a writ of habeas corpus to the district court. The district court ordered the prison authorities to release Ban*52dies, concluding that, given the special circumstances of this case, they had relinquished jurisdiction and were barred from exercising custody.
A purely ministerial mistake does not, by itself, give rise to a “waiver of jurisdiction.” United States v. Merritt, 478 F.Supp. 804, 807 (D.D.C. 1979). However, where a defendant is released through no fault of his own, as a result of actions which transcend simple neglect, and where reincarceration is unequivocally inconsistent with fundamental principles of justice, the state should not re-imprison the defendant. Id.
In the present case, respondent was released through no fault of his own. The State of Nevada Department of Prisons unilaterally determined that they had no further interest in Bandies. This disinterest seemed to be part of a pattern, considering that these authorities had declined to exercise jurisdiction over respondent on a prior occasion as well.
Respondent’s release was more than the result of “simple” negligence. When considering the pattern of disinterest exhibited by the State of Nevada Department of Prisons, especially when viewed in light of the frequent correspondence received from respondent and the federal prison authorities, it becomes apparent that respondent’s release was not the result of some simple clerical error.
Finally, it is evident that the reincarceration of Mr. Bandies will violate fundamental principles of justice. A defendant, once released from prison, should have the opportunity to live down his past and reestablish himself. Shelton v. Ciccone, 578 F.2d 1421, 1245 (8th Cir. 1978). An arrest on an unexecuted sentence will interrupt reintegration into the community. Id. In the present case, Mr. Bandies reintegrated into the community, located a job, developed strong family relationships, and cultivated a prospective marriage. To rip Mr. Bandies out of this environment and return him to prison will constitute the gravest injustice. Nothing can be gained by forcibly severing a rehabilitated person from his ties in the community.2
Respondent has become a reformed and productive member of society. By interfering with respondent’s rehabilitation, this court commits a gross miscarriage of justice.
According to respondent, he used drugs on one occasion and immediately sought counselling. Respondent reported himself to his parole officer and was imprisoned from February 24, 1989 through September, 1989.
It should be noted that Mr. Bandies had been a model prisoner who had availed himself of all educational and vocational opportunities in order to become a productive member of society.