Pedro McPhearson v. Michael Benov

MEMORANDUM

In his 28 U.S.C. § 2241 petition, Pedro McPhearson argues that the United States government yiolated 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 petitioiier’s waiver claim. United States v. Martinez, 837 F.2d 861, 864 (9th Cir.1988). Under this test,

Id. (internal quotation marks omitted). Relief is proper only if the government’s failure to promptly incarcerate the petitioner “shocks the conscience.” Cty. of Sacramento v. Lewis, 523 U.S. 833, 846 , 118 S.Ct. 1708 , 140 L.Ed.2d 1043 (1988) (“[T]he cognizable level of executive abuse of power [is] that which…