Hunter v. United States Parole Commission , 406 F. App'x 879 ( 2010 )

Case: 09-31186 Document: 00511336768 Page: 1 Date Filed: 12/30/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 30, 2010
No. 09-31186
Summary Calendar Lyle W. Cayce
Clerk
STEVEN M. HUNTER,
Petitioner-Appellant
v.
UNITED STATES PAROLE COMMISSION,
Respondent-Appellee
Appeals from the United States District Court
for the Western District of Louisiana
USDC No. 1:06-CV-1745
Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
Steven M. Hunter, federal prisoner # 03704-017, appeals the district
court’s denial of his 28 U.S.C. § 2241 petition alleging, in relevant part, that the
United States Parole Commission’s (USPC) application of amended parole
guidelines violated the Ex Post Facto Clause and was an abuse of discretion. In
1996, Hunter was convicted in the Superior Court for the District of Columbia
of assault, first degree burglary, assault with a dangerous weapon, and
aggravated 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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No. 09-31186
convicted in the Superior Court for the District of Columbia were made by the
District of Columbia Board of Parole (D.C. Board) pursuant to the District of
Columbia’s (D.C.) parole guidelines. See Ellis v. District of Columbia, 84 F.3d
1413, 1415 (D.C. Cir. 1996). On August 5, 1998, the USPC assumed the D.C.
Board’s authority and was given exclusive jurisdiction over parole decisions for
all D.C. felony offenders, including the exclusive authority to amend or
supplement regulations interpreting or implementing the parole laws applicable
to these offenders. See National Capital Revitalization and Self-Government
Improvement Act of 1997, Pub. L. No. 105-33, §11231(a)(1), 111 Stat. 712, 745
(1997) (codified as amended at D.C. Code § 24-131(a)(1)). Pursuant to this
authority, the USPC amended D.C.’s parole guidelines in 1998 and 2000. See
Fletcher v. Reilly, 433 F.3d 867, 870 (D.C. Cir. 2006).
On February 2, 2009, this court remanded the case to the district court for
consideration of: (1) whether the USPC’s application of the amended parole
guidelines at Hunter’s 2005 and 2008 parole hearings violated the Ex Post Facto
Clause; and (2) whether the USPC’s application of the amended parole
guidelines at these hearings was an abuse of discretion, an abuse of authority,
capricious, prejudicial, illegal, and unwarranted. Hunter v. U.S. Parole Comm’n,
308 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
Hunter committed his offenses of conviction. The district court subsequently
denied 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,
he would not be entitled to immediate release. See Wilkinson v. Dotson, 544 U.S.
74, 82 (2005). At best, he would be entitled to a new parole hearing applying the
old guidelines at which the USPC could, in its discretion, decline to shorten his
prison term. See id.; see also Sellmon v. Reilly, 551 F. Supp. 2d 66, 84 (D.D.C.
2008). Because Hunter was afforded this relief when the USPC conducted the
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July 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.
Parole Comm’n, No. 3:08CV415, 2010 WL 2928554, at *1 (E.D. Va. July 22,
2010) (unpublished); Genniro v. Salazar, No. SA CV 07-1325-JVS (E), 2009 WL
89135, at *3-6 (C.D. Cal. Jan. 13, 2009) (unpublished). Further, because
Hunter’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
violations will recur. See Tex. Office of Pub. Util. Counsel v. FCC, 183 F.3d 393,
413-14 (5th Cir. 1999).
Finally, to the extent Hunter challenges the July 27, 2009, hearing and the
USPC’s subsequent denial of parole, these claims are beyond the scope of this
court’s mandate and pending before the Middle District of Pennsylvania in
Hunter v. Bledsoe, No. 1:10-CV-00137. Therefore, the instant appeal is moot and
DISMISSED for lack of jurisdiction. See Bailey v. Southerland, 821 F.2d 277,
278 (5th Cir. 1987). Hunter’s motion for leave to file a supplemental appellant’s
brief is GRANTED, and his motion for bail pending appeal is DENIED.
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