Third Circuit Notes Split Re Interpretation of "Credit for Time at Liberty" Doctrine

Per Vega v. U.S., --- F.3d ----, 2007 WL 1989362 (3rd Cir.(Pa.) Jul 11, 2007) (NO. 05-5105):

The principal issue before us is whether Vega should receive credit toward his federal sentence for the nearly two years he spent at liberty as a result of his erroneous release from the state penitentiary system. Vega proposes that his two periods of incarceration should have run continuously, and thus, the unintentional lapse between the two sentences entitles him to have the intervening period of liberty counted toward his federal sentence. This proposition finds support in the case law of other circuits, where it is alternately referred to as the "rule" or the "doctrine" of credit for time at liberty. The origin of the rule in federal case law can be traced to White v. Pearlman, 42 F.2d 788 (10th Cir.1930). In that case, the Tenth Circuit established that "where a prisoner is discharged from a penal institution, without any contributing fault on his part, and without violation of conditions of parole, [ ] his sentence continues to run while he is at liberty." FN2 Id. at 789. However, the court noted that "[a]s to whether a prisoner, who knows a mistake is being made and says nothing, is at fault, we do not now consider." Id.

FN2. A number of circuits, including our own, have adopted the holding in White. See Free v. Miles, 333 F.3d 550, 554 (5th Cir.2003) ("[I]nadvertent prisoner releases ... present circumstances that courts have repeatedly held to be deserving of credit for time served."); United States ex rel. Binion v. O'Brien, 273 F.2d 495, 498 (3d Cir.1960).

While courts vary in their interpretation and application of the rule, most agree that a mere delay in the commencement of a sentence is insufficient to give a prisoner the right to credit for time at liberty. Most recently, in Leggett v. Fleming, 380 F.3d 232 (5th Cir.2004), the Fifth Circuit reiterated that "we have also held that a delay in the commencement of a sentence by itself does not constitute service of that sentence." Id. at 234; but see Smith v. Swope, 91 F.2d 260, 262 (9th Cir.1937) ("The prisoner is entitled to serve his time promptly if such is the judgment imposed, and he must be deemed to be serving it from the date he is ordered to serve it and is in the custody of the marshal under the commitment, if, without his fault, the marshal neglects to place him in the proper custody."). FN3

FN3. However, some courts have held that if the authorities cause an excessive delay in the commencement of a sentence, they may waive jurisdiction of their right to execute a sentence. See Shields v. Beto, 370 F.2d 1003, 1004-06 (5th Cir.1967) (noting that "delay in execution of a sentence is repugnant to the law").

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[I]in order for a prisoner to receive credit for time he was erroneously at liberty, the prisoner's habeas petition must contain facts that demonstrate that he has been released despite having unserved time remaining on his sentence. Once he has done this, the burden shifts to the government to prove either (1) that there was no negligence on the part of the imprisoning sovereign, or (2) that the prisoner obtained or retained his liberty through his own efforts. This test is similar to tests created by our sister circuits who have addressed the issue.