Lee Norman CLARK, Petitioner-Appellant, v. Clifton E. FLOYD, Warden, FCI Phoenix, Respondent-Appellee

80 F.3d 371 96 Cal. Daily Op. Serv. 2270 , 96 Daily Journal D.A.R. 3814 Lee Norman CLARK, Petitioner-Appellant, v. Clifton E. FLOYD, Warden, FCI Phoenix, Respondent-Appellee. No. 94-16759. United States Court of Appeals, Ninth Circuit. Submitted July 13, 1995 * . Decided April 3, 1996. Lee Norman Clark, pro per, Phoenix, Arizona, petitioner-appellant. Charles M. Steele, Assistant United States Attorney, Phoenix, Arizona, for respondent-appellee. Appeal from the United States District Court for the District of Arizona, No. CV-93-801-RGS; Roger G. Strand, District Judge, Presiding. Before: SNEED, CANBY, and FERNANDEZ, Circuit Judges. CANBY, Circuit Judge. I. 1 Lee Norman Clark filed a petition for habeas corpus under 28 U.S.C. § 2241 in district court. The district court denied Clark's petition on the merits, and Clark appeals. He contends that time spent in state custody and at large after his release from state custody should be credited against his federal sentences. Because we agree that the time spent after release should be credited, we reverse the district court's denial of Clark's petition. II. 2 In 1983, Clark was convicted in district court of federal drug offenses.…

I.

Lee Norman Clark filed a petition for ha-beas corpus under 28 U.S.C. § 2241 in district court. The district court denied Clark’s petition on the merits, and Clark appeals. He contends that time spent in state custody and at large after his release from state custody should be credited against his federal sentences. Because we agree that the time spent after release should be credited, we reverse the district court’s denial of Clark’s petition.

II.

In 1983, Clark was convicted in district court of federal drug offenses. The district court sentenced Clark to two five-year prison terms and a five-year term of probation, all of which were to run consecutively. After sentencing, Clark was released on bond pending appeal. The court ordered that the probationary term commence at that time.

While on that probation, Clark was arrested in Montana on state charges of manufacturing methamphetamine. Clark was placed in state custody that day. He was convicted in Montana state court and began serving his state sentence of 40 years in state prison-.

Subsequently, the federal court issued a writ of habeas corpus ad prosequendum, under which Clark was delivered to the federal court for a…

concurring in part and dissenting in part:

I concur in all of the majority opinion with the exception of the part labelled “Credit commencing November 27, 1989.” From that part I dissent.

Clark seeks to capitalize on a mistake made by Montana prison officials who released him, even though the United States marshal had filed a detainer with them. There is no doubt that Clark knew that he had been convicted in federal court of three counts of manufacturing a controlled sub *375 stance. He had been sentenced to 10 years imprisonment plus 5 years probation. While those were on appeal, he was released on bond. He took advantage of that free time to return to his nefarious business. As a result, he was arrested, tried and sentenced for state offenses, and was then sent to Montana State Prison for 40 years. His federal probation was also violated and he received still another 5 year consecutive sentence for a total of 15 years in federal prison.

He now asserts that he should be credited for the time he was at liberty between his release from the Montana State Prison and his arrest by United States marshals. He suggests that he was confused and somehow just did not understand that the…