IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 2, 2009
No. 07-30082
Summary Calendar Charles R. Fulbruge III
Clerk
STEVEN M. HUNTER
Petitioner-Appellant
v.
UNITED STATES PAROLE COMMISSION
Respondent-Appellee
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:06-CV-1745
Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
Steven M. Hunter, federal prisoner # 03704-017, appeals the district
court’s denial of his petition pursuant to 28 U.S.C. § 2241 (2008). For the
following reasons, we AFFIRM IN PART and VACATE AND REMAND IN
PART.
I. FACTUAL & PROCEDURAL BACKGROUND
In 1996, Hunter was convicted in the Superior Court of the District of
Columbia of first degree burglary, aggravated assault, and assault with a
*
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 R. 47.5, the Court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-30082
dangerous weapon. Hunter was sentenced to not less than ten nor more than
thirty-one years of imprisonment. On some unspecified date, in a prison
disciplinary hearing, Hunter was also convicted of assaulting a corrections
officer. Based on this disciplinary infraction, the United States Parole
Commission (USPC) added twelve to eighteen months1 to Hunter’s parole
guideline range.
On October 6, 2006, Hunter filed a habeas petition pursuant to 28 U.S.C.
§ 2241, alleging the following: (1) the USPC erred in failing to grant his petition
for a special reconsideration hearing; (2) the USPC’s application of the amended
parole guidelines was unconstitutional, in violation of the Ex Post Facto Clause,
and an abuse of discretion; (3) the USPC violated the Equal Protection Clause
by treating him differently than similar District of Columbia (D.C.) prisoners;
(4) the USPC impermissibly considered a recorded telephone conversation
between him and his mother; and (5) the USPC abused its discretion when it
failed to accept the hearing examiner’s recommendation.
On December 8, 2006, the magistrate judge issued a report recommending
that Hunter’s § 2241 petition be denied and that his case be dismissed with
prejudice. The district court adopted the magistrate judge’s findings and denied
Hunter’s § 2241 petition with prejudice. The district court entered its judgment
on January 3, 2007, and Hunter filed a timely notice of appeal.
Within ten days after the entry of judgment, Hunter filed his objections to
the magistrate judge’s report and recommendation. He explained that his copy
of the report and recommendation was sent to the incorrect prison and,
consequently, he had not received it until January 3, 2007. Hunter asked that
1
It is unclear from Hunter’s appellate brief whether the USPC added twelve to eighteen
months or twelve to twenty-two months to his parole guideline range. The magistrate judge’s
report and recommendation asserts that the USPC added only twelve to eighteen months to
Hunter’s parole guideline range. However, this inconsistency is neither relevant to nor
determinative of the outcome of this appeal. What is relevant is that the USPC delayed
Hunter’s parole eligibility by several months.
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No. 07-30082
the district court consider his objections, but the district court did not address
them.
On appeal, this Court construed Hunter’s objections as a motion under
Federal Rule of Civil Procedure 59(e) and remanded to the district court for the
limited purpose of ruling on the outstanding motion. On remand, the district
court reviewed the magistrate judge’s report and recommendation, Hunter’s
objections, and the prior judgment. The district court concluded that Hunter
raised no claim that had not been adequately addressed in the report and
recommendation. Consequently, Hunter’s Rule 59(e) motion was denied and his
earlier filed notice of appeal became effective.
II. STANDARD OF REVIEW
“In the context of a § 2241 petition, this [C]ourt ‘reviews the district court’s
determinations of law de novo and its findings of facts for clear error.’” Royal v.
Tombone, 141 F.3d 596, 599 (5th Cir. 1998) (quoting Venegas v. Henman, 126
F.3d 760, 761 (5th Cir. 1997)).
III. DISCUSSION
A.
Hunter first contends that the district court erred by failing to consider his
objections to the magistrate judge’s report and recommendation. As discussed
above, on remand, the district court reviewed de novo the magistrate judge’s
report and recommendation in conjunction with Hunter’s objections. The district
court concluded that Hunter did not raise any claims not adequately addressed
by the report and recommendation. Therefore, this argument is without merit.
B.
Hunter next argues that the district court erred by summarily dismissing
his Ex Post Facto claim. Hunter contends that the USPC violated the Ex Post
Facto Clause because the parole guidelines are “laws” and the USPC’s
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No. 07-30082
retroactive application of guidelines not in effect at the time of his 1996
conviction created a significant risk of increased punishment.2
The Ex Post Facto Clause is designed in part “to bar enactments which,
by retroactive operation, increase the punishment for a crime after its
commission.” Garner v. Jones, 529 U.S. 244, 249 (2000). Retroactive changes to
laws governing parole of prisoners may, in some cases, violate this precept. Id.
More specifically, “changes to parole eligibility could retroactively increase
punishment” in violation of the Ex Post Facto Clause. Wallace v. Quarterman,
516 F.3d 351, 355 (5th Cir. 2008). The controlling inquiry is whether retroactive
application of the new law, as applied to Hunter’s sentence, creates “a sufficient
risk of increasing the measure of punishment attached to the covered crimes.”
Garner, 529 U.S. at 250. A speculative and attenuated possibility of increasing
the measure of punishment is not a “sufficient risk” so as to establish an Ex Post
Facto violation. Cal. Dep’t of Corrections v. Morales, 514 U.S. 499, 508-09 (1995).
If “the rule does not by its own terms show a significant risk, the respondent
must demonstrate . . . that its retroactive application will result in a longer
period of incarceration than under the earlier rule.” Garner, 529 U.S. at 255.
A parole board’s “discretion does not displace the protections of the Ex Post
Facto Clause.” Id. at 253.
Hunter submits that under the amended guidelines, the USPC: (1)
calculated a salient factor score to determine how many months to add to his
2
When Hunter was convicted, the D.C. Board of Parole made all parole decisions,
pursuant to D.C.’s parole laws and regulations, for defendants convicted in the Superior Court
for the District of Columbia. 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 of Parole’s authority, was given
exclusive jurisdiction over parole decisions for all D.C. felony offenders, and was given
exclusive authority to amend or supplement any regulation interpreting or implementing
D.C.’s parole laws concerning felons. 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)). Based on its newfound authority under § 24-131,
the USPC amended D.C.’s parole guidelines in 1998 and 2000, now set forth at 28 C.F.R. §
2.80. These were the guidelines applied to Hunter.
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No. 07-30082
guideline range for disciplinary infractions; (2) considered one of his disciplinary
infractions as new criminal conduct despite his never having been indicted; (3)
failed to award him any months for his Superior Program Achievement; and (4)
applied a severity rating to his disciplinary infractions. He contrasts the
application of the new guidelines against the application of the former parole
guidelines, alleging that the D.C. Board of Parole did not use a salient factor
score to determine how many months should be added for disciplinary
infractions, would not have considered his disciplinary infraction as new
criminal conduct, would only have considered disciplinary infractions within the
past year, would not have applied a severity rating to his disciplinary
infractions, and would have awarded him a reduction for his Superior Program
Achievement.
The district court summarily rejected Hunter’s Ex Post Facto claim
without developing whether retroactive application of the new guidelines, as
applied to Hunter, significantly increased the risk of prolonged incarceration.
Rather, the district court considered “the key factor” to be that, like its
predecessor the D.C. Board of Parole, the USPC exercises broad discretion in
determining a prisoner’s parole guidelines. According to the district court, since
either body could exercise discretion, it would be impossible for Hunter to
establish a significant risk of increased punishment. But, as noted above, a
parole board’s discretion does not displace Ex Post Facto concerns. Garner, 529
U.S. at 253. The district court should have compared the guidelines at issue
with the old guidelines to determine whether there were facial distinctions and
whether their applications as to Hunter yielded different results. See id. at 255-
57. As is, the record is insufficient for this Court to determine whether the
amended parole guidelines created a significant risk of increased punishment.
Accordingly, the district court’s denial of Hunter’s Ex Post Facto claim is vacated
and we remand the case to the district court for reconsideration of this issue.
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No. 07-30082
C.
Hunter also contends that the USPC violated his right to equal protection
by treating him differently than similarly situated D.C. offenders. To prevail on
an equal protection claim, Hunter must show that the USPC “purposefully
discriminated against him and that he was treated differently from similarly-
situated prisoners.” Longoria v. Dretke, 507 F.3d 898, 904 (5th Cir. 2007).
Hunter has alleged that he was treated differently than another similarly
situated prisoner. He has not, however, alleged or proffered any evidentiary
basis for, nor does the record support, a finding that such treatment stemmed
from discriminatory intent. Even pro se litigants must brief arguments in order
to preserve them. Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
Accordingly, Hunter’s equal protection claim is deemed abandoned. See id.
D.
Hunter does not reassert either his claim that the USPC impermissibly
considered a recorded telephone conversation between him and his mother, or
his claim that the USPC erred in failing to grant his petition for a special
reconsideration hearing. Further, aside from conclusional allegations, Hunter
does not challenge the district court’s determination that D.C.’s parole scheme
does not create a liberty interest in parole. Because Hunter never argued these
claims in his appellate brief, they are likewise deemed abandoned. See Yohey,
985 F.2d at 224-25.
E.
Hunter submits that the USPC’s application of the amended parole
guidelines was an abuse of discretion, an abuse of authority, capricious,
prejudicial, illegal, and unwarranted. The district court did not address this
claim. A statement of findings of fact and conclusions of law is indispensable to
appellate review. United States v. Daly, 823 F.2d 871, 872 (5th Cir. 1987).
Therefore, the case is remanded to the district court for consideration of this
issue.
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F.
Hunter contends that the USPC has failed to provide him a parole
rehearing in retaliation for the instant appeal. Because this issue is raised for
the first time on appeal, we will not consider it. See Leverette v. Louisville
Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999).
IV. CONCLUSION
AFFIRMED IN PART, VACATED AND REMANDED IN PART.
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