Rogers v. United States Parole Commission , 288 F. App'x 132 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 15, 2008
No. 08-50206
Summary Calendar Charles R. Fulbruge III
Clerk
GERALD LEO ROGERS
Petitioner-Appellant
v.
UNITED STATES PAROLE COMMISSION
Respondent-Appellee
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:07-CV-170
Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
Gerald Leo Rogers, federal prisoner # 12327-086, has moved to proceed in
forma pauperis (IFP) in his appeal of the district court’s denial of relief on his 28
U.S.C. § 2241 petition. By moving for IFP status, Rogers is challenging the
district court’s certification that his appeal is not taken in good faith. See Baugh
v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
*
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should not be published and is not precedent except under the limited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.
No. 08-50206
Rogers filed the § 2241 petition to challenge the revocation of his parole on
charges that he committed a criminal fraud violation. Rogers, who has two
previous criminal convictions, first argues that those convictions are invalid
because the courts in which he was convicted lacked jurisdiction and because the
Government lacked standing. Because his previous convictions are invalid,
Rogers contends, the United States Parole Commission (the Commission) lacks
authority over him.
A § 2241 petition that attacks errors that occurred at trial or sentencing
may be considered under the “savings clause” of 28 U.S.C. § 2255(e) if the
prisoner shows that the § 2255 remedy is “inadequate or ineffective to test the
legality of his detention.” Rogers, however, has not met his burden to show that
his claims satisfy the savings clause. See Wesson v. Penitentiary, Beaumont, TX,
305 F.3d 343, 347 (5th Cir. 2002); Reyes-Requena v. United States, 243 F.3d 893,
904 (5th Cir. 2001).
Rogers also contends that his due process rights were violated at his
revocation hearing because he was denied the right to confront four adverse
witnesses. He asserts that the witnesses, who are Government agents, were
involved in the premature seizure of his company’s assets, and he alleges that
the actions of these witness caused investors in his company to lose five million
dollars.
A parolee who was denied due process must show that he was prejudiced
by the violation. Brecht v. Abrahamson, 507 U.S. 619, 637-39 (1993). He must
show that the due process violation had a substantial and injurious effect or
influence in determining the proceeding’s outcome. Williams v. Johnson, 171
F.3d 300, 307 (5th Cir. 1999).
Rogers has not shown that the testimony of the four witnesses would have
been relevant to the Commission’s determination that he committed investment
fraud by, inter alia, making statements to investors that were misleading and
by failing to disclose material facts in securing investments. Because he has not
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No. 08-50206
shown that the claimed due process violation had a substantial and injurious
effect or influence in determining the proceeding’s outcome, Rogers has failed to
make the required showing of prejudice. See Brecht, 507 U.S. at 637-39;
Williams, 171 F.3d at 307.
Rogers has not shown that the district court’s determination that his
appeal would be frivolous was incorrect. Accordingly, his appeal is dismissed as
frivolous, and his request to proceed IFP is denied. See Baugh, 117 F.3d at 202
n.24; 5th Cir. R. 42.2.
Rogers has filed a motion seeking a stay of incarceration under Rule 18 of
the Federal Rules of Appellate Procedure. The Government has moved for leave
to file an out-of-time response to Rogers’ motion. The Government’s motion is
granted.
Because this court is not the initial judicial tribunal to consider Rogers’
claims regarding the Commission’s actions, he cannot obtain relief under FED.
R. APP. P. 18. See Tesfamichael v. Gonzales, 411 F.3d 169, 174 (5th Cir. 2005).
If Roger’s motion is instead considered as a motion for release pending appeal,
he likewise is not entitled to relief because he fails to demonstrate the existence
of exceptional circumstances. See United States v. Lacy, 643 F.2d 284, 285 (5th
Cir. 1981). Accordingly, Rogers’ motion is denied.
APPEAL DISMISSED; IFP MOTION DENIED; MOTION FOR LEAVE
TO FILE AN OUT-OF-TIME RESPONSE GRANTED; MOTION FOR STAY OF
INCARCERATION DENIED.
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