Pedro McPhearson v. MICHAEL BENOV, Warden; LORETTA E. LYNCH, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PEDRO MCPHEARSON,
Petitioner - Appellant,
v.
MICHAEL BENOV, Warden; LORETTA
E. LYNCH, Attorney General,
Respondents - Appellees.
No. 14-16031
D.C. No. 2:09-cv-01889-DAD
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Dale A. Drozd, Magistrate Judge, Presiding
Argued and Submitted August 14, 2015
San Francisco, California
Before: TALLMAN and CALLAHAN, Circuit Judges and ROSENTHAL,**
District Judge.
FILED
AUG 18 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Lee H. Rosenthal, United States District Judge for the
Southern District of Texas, sitting by designation.

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In his 28 U.S.C. § 2241 petition, Pedro McPhearson argues that the United
States government violated his Fifth Amendment right to due process by re-
incarcerating him after almost ten years of failing to execute his sentence. Finding
the government’s conduct neither “shocked the conscience,” nor was “inconsistent
with fundamental principles of liberty and justice,” the district court denied
McPhearson’s petition. We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
1. The government did not “waive its jurisdiction” over McPhearson such
that re-incarcerating him violated due process. In delayed incarceration cases, we
use the “totality of the circumstances test espoused in” United States v. Merritt,
478 F. Supp. 804, 807 (D.D.C. 1979), to evaluate the petitioner’s waiver claim.
United States v. Martinez, 837 F.2d 861, 864 (9th Cir. 1988). Under this test,
[a] convicted person will not be excused from serving his sentence
merely because someone in a ministerial capacity makes a mistake
with respect to its execution. Several additional factors must be
present before relief will be granted—the result must not be
attributable to the defendant himself; the action of the authorities must
amount to more than simple neglect; and the situation brought about
by defendant’s release and his incarceration must be unequivocally
inconsistent with fundamental principles of liberty and justice.
Id. (internal quotation marks omitted). Relief is proper only if the government’s
failure to promptly incarcerate the petitioner “shocks the conscience.” Cty. of
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Sacramento v. Lewis, 523 U.S. 833, 846 (1988) (“[T]he cognizable level of
executive abuse of power [is] that which shocks the conscience.”).
Here, McPhearson has not established that his re-incarceration “shocks the
conscience.” The government’s failure to lodge a detainer with the Los Angeles
County Sheriff was a “ministerial” mistake not rising to the level of a due process
violation. See Martinez, 837 F.2d at 864. And while the government was
neglectful—even very neglectful—in failing to incarcerate McPhearson for nearly
ten years, under our case law, mere neglect does not violate due process. See id. at
863, 865 (declining to find waiver even though Martinez was erroneously at liberty
for nearly seven years during which time he “made no attempt to conceal his
identity or to flee”); cf. Johnson v. Williford, 682 F.2d 868, 873 (9th Cir. 1982)
(finding the government waived its jurisdiction over Johnson when federal officials
told him multiple times he was parole-eligible, released him on parole, and re-
incarcerated him after realizing he was in fact convicted of a non-parolable
offense).
Nor was McPhearson’s re-incarceration after ten years at liberty
“unequivocally inconsistent with fundamental principles of liberty and justice.”
Martinez, 837 F.2d at 864 (internal quotation marks omitted). The United States
Bureau of Prisons granted McPhearson day-for-day credit for all of his time at
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liberty, plus good time credits. See Green v. Christiansen, 732 F.2d 1397, 1400
(9th Cir. 1984) (discussing the “credit for time at liberty” doctrine). Ultimately,
McPhearson will serve fewer than eight years of a nearly twenty-two year
sentence. In this way, although McPhearson’s re-incarceration was disruptive for
his life and family, it was not sufficient to constitute a substantive due process
violation and require McPhearson’s immediate release. See Martinez, 837 F.2d at
864–65.
2. Finally, relief is not warranted under an alternative “equitable estoppel”
theory because, as the district court found, McPhearson did not prove he was
“ignorant of the facts” of his erroneous release. See Johnson, 682 F.2d at 873
(discussing the elements of equitable estoppel).
AFFIRMED.
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