Unpublished Disposition, 919 F.2d 144 (9th Cir. 1994)

MEMORANDUM^** 

Petitioner Gabriel Gibson appeals pro se the district court's dismissal of his habeas corpus petition filed pursuant to 28 U.S.C. § 2254. Gibson contends that he is entitled to credit toward his federal sentence for time served in state custody and while on state parole. Gibson also challenges the postponement of his parole eligibility date, claiming that the postponement extends his sentence in violation of the double jeopardy clause. Because we find Gibson's claims to be without merit, we affirm.

FACTS

Gibson was convicted of conspiracy, kidnapping and interstate transportation for immoral purposes, and was sentenced to a 40-year term in federal prison. He was subsequently convicted of rape in Missouri state court and sentenced to seven years, to run consecutively with his federal sentence. He was then returned to federal custody and began serving his federal sentence on August 18, 1980.

In the meantime, Gibson appealed his federal convictions. The Seventh Circuit reversed and remanded Gibson's case for a new trial. Gibson was arraigned but could not post bond; accordingly, he remained in federal custody. While he awaited retrial, he was given the option of remaining in federal pretrial detention, or beginning to serve his state sentence. Gibson chose the latter and was transferred back to state custody. He began serving his seven-year state sentence on September 9, 1982.

In July 1984, the Seventh Circuit affirmed Gibson's federal convictions pursuant to a remand from the Supreme Court. Federal marshals, however, were unaware of the Seventh Circuit's holding. As a result, Gibson remained in state custody. In January 1985, Gibson was released on state parole to a halfway house. In June 1986, federal marshals apprehended Gibson and returned him to federal custody to serve the remainder of his 40-year federal sentence.

Gibson was given credit on his federal sentence only for time served in federal custody (August 1980-September 1982). He filed a petition for habeas corpus in the Western District of Washington, alleging that he should be given credit for the time he served in state custody and while on state parole. Subsequently, the government stipulated that Gibson should have received credit for time spent on state parole (January 31, 1985-June 5, 1986), and his petition was dismissed. Gibson now appeals this dismissal.

DISCUSSION

Gibson's first claim is that he is entitled to credit on his federal sentence for time served while in state prison and on state parole. Gibson contends that if he is not given credit for time served pursuant to his state conviction, he will be forced to serve his federal sentence in installments, in violation of his due process rights.

We have held that 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. United States v. Martinez, 837 F.2d 861, 865 (9th Cir. 1988); Green v. Christiansen, 732 F.2d 1397, 1400 (9th Cir. 1984). Here, Gibson was erroneously released from custody when federal authorities failed to file a detainer with Missouri officials after his federal conviction was reinstated. He is entitled to credit for time spent at liberty--that is, for time spent while on state parole. Since the government has stipulated that Gibson was entitled to credit for this time, this portion of Gibson's appeal is moot. Reimers v. State of Oregon, 863 F.2d 630, 632 (9th Cir. 1989).

Gibson also asserts, however, that he is entitled to credit for time spent in state prison. We disagree. " [T]here is no statutory provision that accords a prisoner credit against a federal sentence for time served in a state prison on a state charge." Raines v. U.S. Parole Comm'n, 829 F.2d 840, 843 (9th Cir. 1987). Moreover, a district court order granting credit for time served in state custody before the defendant is transferred into federal custody is invalid because a federal sentence does not begin to run until the defendant is delivered to federal authorities. United States v. Warren, 610 F.2d 680, 685 n. 9 (9th Cir. 1980); see also 18 U.S.C. § 3568 ("The sentence of imprisonment of any person convicted of an offense shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of such sentence"). Here, Gibson's federal sentence was vacated, and he was transferred into state custody to begin serving a consecutive state sentence. Upon subsequent reinstatement of his federal conviction, his federal sentence could not begin to run again until he was delivered to federal authorities after his state sentence had expired. United States v. Perno, 605 F.2d 432, 433 (9th Cir. 1979).

Finally, it is significant that Gibson himself chose to leave federal pretrial detention to begin service on his state sentence. Having made a voluntary choice to leave federal custody in order to serve his state sentence, he cannot now complain that his federal sentence was impermissibly interrupted. Cf. Martinez, 837 F.2d at 864 (delay in implementation of sentence cannot constitute violation of due process where delay is attributable to defendant).

Gibson's second claim is that the postponement of his parole eligibility date from August 17, 1990 to May 5, 1994 violates the double jeopardy clause by increasing his sentence after he began serving it. This claim is also without merit. Gibson's original parole eligibility date was calculated by predicting the earliest date upon which Gibson could be released assuming full accumulation of good-time credits. That Gibson's federal sentence was interrupted by the appeals process and his service of a consecutive state sentence simply means that the parole eligibility date was necessarily recalculated to reflect the amount of time actually served on the federal sentence. See 18 U.S.C. § 4161 (repealed Nov. 1, 1987; applicable for five years to offenses committed prior to that date). There is, therefore, no deprivation of a constitutionally-protected right.

AFFIRMED.