*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this opinion should not be published and is not precedent except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.

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
 

3 United States v. Hicks, 980 F.2d 963 (5th Cir. 1992).

2

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
 

4 United States v. Bridges, 116 F.3d 1110, 1112 (5th Cir.

1997).

3

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
 

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

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
 

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

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
 

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

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
 

15 Id. at 246.

7

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
8

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.