Steven Hunter v. U. S. Parole Commission

Filing 920101230


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Case: 09-31186 Document: 00511336768 Page: 1 Date Filed: 12/30/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 09-31186 S u m m a r y Calendar December 30, 2010 Lyle W. Cayce Clerk S T E V E N M. HUNTER, P e titio n e r-A p p e lla n t v. U N IT E D STATES PAROLE COMMISSION, R e s p o n d e n t -A p p e lle e A p p e a ls from the United States District Court fo r the Western District of Louisiana U S D C No. 1:06-CV-1745 B e fo r e JOLLY, GARZA, and STEWART, Circuit Judges. P E R CURIAM:* S t e v e n M. Hunter, federal prisoner # 03704-017, appeals the district c o u r t's denial of his 28 U.S.C. 2241 petition alleging, in relevant part, that the U n ite d States Parole Commission's (USPC) application of amended parole g u id e lin e s violated the Ex Post Facto Clause and was an abuse of discretion. In 1 9 9 6 , Hunter was convicted in the Superior Court for the District of Columbia o f assault, first degree burglary, assault with a dangerous weapon, and a g g r a v a t e d assault. At the time of his conviction, parole decisions for defendants 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Case: 09-31186 Document: 00511336768 Page: 2 Date Filed: 12/30/2010 No. 09-31186 c o n v ic t e d in the Superior Court for the District of Columbia were made by the D is t r ic t of Columbia Board of Parole (D.C. Board) pursuant to the District of C o lu m b ia 's (D.C.) parole guidelines. See Ellis v. District of Columbia, 84 F.3d 1 4 1 3 , 1415 (D.C. Cir. 1996). On August 5, 1998, the USPC assumed the D.C. B o a r d 's authority and was given exclusive jurisdiction over parole decisions for a ll D.C. felony offenders, including the exclusive authority to amend or s u p p le m e n t regulations interpreting or implementing the parole laws applicable t o these offenders. See National Capital Revitalization and Self-Government I m p r o v e m e n t Act of 1997, Pub. L. No. 105-33, 11231(a)(1), 111 Stat. 712, 745 (1 9 9 7 ) (codified as amended at D.C. Code 24-131(a)(1)). Pursuant to this a u t h o r it y , the USPC amended D.C.'s parole guidelines in 1998 and 2000. See F le tc h e r v. Reilly, 433 F.3d 867, 870 (D.C. Cir. 2006). O n February 2, 2009, this court remanded the case to the district court for c o n s id e r a t io n of: (1) whether the USPC's application of the amended parole g u id e lin e s at Hunter's 2005 and 2008 parole hearings violated the Ex Post Facto C la u s e ; and (2) whether the USPC's application of the amended parole g u id e lin e s at these hearings was an abuse of discretion, an abuse of authority, c a p riciou s, prejudicial, illegal, and unwarranted. Hunter v. U.S. Parole Comm'n, 3 0 8 F. App'x 856, 859-60 (5th Cir. 2009). On July 27, 2009, the USPC conducted a new parole determination hearing applying the guidelines in effect at the time H u n te r committed his offenses of conviction. The district court subsequently d e n ie d Hunter's ex post facto and abuse of discretion claims and dismissed his 2241 petition with prejudice. Were Hunter to prevail on his ex post facto and abuse of discretion claims, h e would not be entitled to immediate release. See Wilkinson v. Dotson, 544 U.S. 7 4 , 82 (2005). At best, he would be entitled to a new parole hearing applying the o ld guidelines at which the USPC could, in its discretion, decline to shorten his p r is o n term. See id.; see also Sellmon v. Reilly, 551 F. Supp. 2d 66, 84 (D.D.C. 2 0 0 8 ). Because Hunter was afforded this relief when the USPC conducted the 2 Case: 09-31186 Document: 00511336768 Page: 3 Date Filed: 12/30/2010 No. 09-31186 J u ly 27, 2009, hearing, Hunter's 2241 petition and the instant appeal are moot. See Wilson v. Reilly, 163 F. App'x 122, 125 (3d Cir. 2006); Gassaway v. U.S. P a r o le Comm'n, No. 3:08CV415, 2010 WL 2928554, at *1 (E.D. Va. July 22, 2 0 1 0 ) (unpublished); Genniro v. Salazar, No. SA CV 07-1325-JVS (E), 2009 WL 8 9 1 3 5 , at *3-6 (C.D. Cal. Jan. 13, 2009) (unpublished). Further, because H u n te r 's parole will continue to be determined under the old guidelines, see 28 C .F .R . 2.80(o)(1)-(2), there is no reasonable expectation that the alleged v io la t io n s will recur. See Tex. Office of Pub. Util. Counsel v. FCC, 183 F.3d 393, 4 1 3 -1 4 (5th Cir. 1999). Finally, to the extent Hunter challenges the July 27, 2009, hearing and the U S P C 's subsequent denial of parole, these claims are beyond the scope of this c o u r t's mandate and pending before the Middle District of Pennsylvania in H u n te r v. Bledsoe, No. 1:10-CV-00137. Therefore, the instant appeal is moot and D I S M IS S E D for lack of jurisdiction. See Bailey v. Southerland, 821 F.2d 277, 2 7 8 (5th Cir. 1987). Hunter's motion for leave to file a supplemental appellant's b r ie f is GRANTED, and his motion for bail pending appeal is DENIED. 3

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