Fillingham v. United States

• Decision Date: 11 August 2017
• Docket Number: No. 16-40317,16-40317
• Citation: 867 F.3d 531
• Parties: Frederick James FILLINGHAM, Petitioner–Appellant, v. UNITED STATES of America, Respondent–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

867 F.3d 531

Frederick James FILLINGHAM, Petitioner–Appellant,

v.UNITED STATES of America, Respondent–Appellee.

No. 16-40317

United States Court of Appeals, Fifth Circuit.

FILED August 11, 2017

Frederick James Fillingham, Pro Se.Ruth Harris Yeager, Assistant U.S. Attorney, U.S. Attorney's Office, for Respondent–Appellee.

Before JOLLY, ELROD, Circuit Judges, and STARRETT, District Judge.^*

JENNIFER WALKER ELROD, Circuit Judge:

Petitioner Frederick James Fillingham, a federal inmate proceeding pro se , filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. The district court denied Fillingham's petition. Because each of Fillingham's claims is not administratively exhausted, lacks merit, or is raised for the first time on appeal, we AFFIRM the district court's dismissal of Fillingham's § 2241 petition. We also DENY Fillingham's motion for appointment of counsel and motion for compensation.

I.

In 1984, in the United States District Court for the District of South Carolina, Petitioner Frederick James Fillingham pleaded guilty to importing 7,000 pounds of marijuana. Specifically, Fillingham pleaded guilty to two counts: one count charging him with violating 21 U.S.C. §§ 952(a) and 960 and another count charging him with violating 21 U.S.C. § 841(a)(1). The district court imposed a sentence of two years of imprisonment and fifteen years of special parole¹ for one count and a suspended sentence of five years of imprisonment, five years of probation, and fifteen years of special parole on the other count.

Over the course of the twenty-five years following Fillingham's original conviction, he committed a series of other violations which resulted in additional convictions as well as revocation of his parole. Fillingham began serving his term of special parole for his original conviction in 1993. However, his special parole was revoked in 1996 after he pleaded guilty in a California state court to "Inflict[ing] Corporal Injury on a Spouse or Co-habitant." Later in 1996, Fillingham was released on regular parole because the United States Parole Commission had converted his special parole to regular parole based on this court's decision in Artuso v. Hall , 74 F.3d 68 (5th Cir. 1996). The Commission later vacated its conversion of Fillingham's special parole to regular parole based on the United States Supreme Court's decision in Johnson v. United States , 529 U.S. 694, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000). In 2000, the Commission issued a revocation warrant for Fillingham's arrest based on technical parole violations. Before the warrant could be executed, however, Fillingham was caught smuggling 396 kilograms of cocaine into the United Kingdom. Fillingham was subsequently convicted in the United Kingdom and sentenced to a term of eighteen years of imprisonment. The Commission's warrant for Fillingham's arrest was finally executed in 2009.

At a hearing in 2010, the Commission found that Fillingham had committed technical parole violations, violated the conditions of his parole regarding drug use, and committed a third violation—a law violation—based on his United Kingdom conviction. Accordingly, the Commission revoked Fillingham's special parole, denied him credit for the time he spent on special parole, and ordered that he be imprisoned until the expiration of his term of special parole. The Commission imposed the maximum revocation sentence, relying heavily on Fillingham's foreign conviction.

Fillingham subsequently filed a petition under 28 U.S.C. § 2241 in the United States District Court for the Eastern District of Texas challenging his original criminal conviction, his parole revocation, and the Commission and Bureau of Prison's calculation of his sentence. Specifically, Fillingham raised the following claims: (1) counsel was ineffective in his original criminal case and in his parole revocation proceeding; (2) the Commission violated the Ex Post Facto Clause by retroactively applying its guidelines and administrative processes, reimposing special parole after he was released on regular parole, and denying him credit for time he spent on special parole; (3) the Commission denied him due process by using his foreign conviction to revoke his special parole and impose the maximum revocation sentence; (4) his property was unlawfully seized; and (5) the Commission and the Bureau of Prison's calculation denied him credit towards his sentence for foreign jail time. The district court dismissed Fillingham's § 2241 petition, and Fillingham filed a timely notice of appeal.

II.

The district court dismissed the following claims for failure to exhaust administrative remedies: (1) ineffective assistance of counsel in the original criminal case and parole revocation proceeding; and (2) violation of the Ex Post Facto Clause based on the Commission's retroactive application of its guidelines and administrative processes. Fillingham argues the district court erred in dismissing these claims. We review the dismissal of a claim for failure to exhaust administrative remedies for abuse of discretion. Gallegos-Hernandez v. United States , 688 F.3d 190, 194 (5th Cir. 2012). "[A] federal prisoner filing a § 2241 petition must first pursue all available administrative remedies." Id. While exceptions to the exhaustion requirement do exist, they apply only in "extraordinary circumstances," and the burden of proof for demonstrating the futility of administrative review rests with the petitioner. Fuller v. Rich , 11 F.3d 61, 62 (5th Cir. 1994). Because Fillingham did not present these challenged claims to the Commission or the Bureau of Prisons and because Fillingham has not demonstrated that an exception to the exhaustion requirement applies in this case, the district court did not abuse its discretion in dismissing these claims for failure to exhaust administrative remedies.² See id.

III.

We next address Fillingham's claims relating to his parole revocation. We review the district court's findings of fact for clear error and issues of law de novo . Dale v. Quarterman , 553 F.3d 876, 879 (5th Cir. 2008). To obtain relief under § 2241, the prisoner must establish a violation of either the Constitution or federal law. 28 U.S.C. § 2241(c)(3).

A.

Fillingham first argues that the Commission was not authorized to reimpose special parole given our decision in Artuso , which he contends was unaffected by the Supreme Court's decision in Johnson . He further argues that the Commission violated the Ex Post Facto Clause when it reimposed special parole because he automatically forfeited credit for the three-and-a-half years he spent on special parole. We disagree.

In Artuso , we held that the Commission lacked authority under the former version of 21 U.S.C. § 841(c) to impose a second term of special parole after it had revoked a first special parole term. 74 F.3d at 71–72. We based our construction of the former version of § 841(c) on our reasoning in United States v. Holmes , 954 F.2d 270, 272 (5th Cir. 1992), in which we held that the sentencing court lacked authority under 18 U.S.C. § 3583(e)(3) to impose a second term of supervised release after it had revoked a first supervised release term. Artuso , 74 F.3d at 71. After our decisions in Holmes and Artuso , the Supreme Court abrogated Holmes by holding that § 3583(e)(3) permits the reimposition of supervised release. Johnson , 529 U.S. at 698–99 & n.2, 713, 120 S.Ct. 1795. Fillingham and the government dispute whether Johnson undermines this court's holding in Artuso .

There is a post- Johnson circuit split regarding whether the Commission can reimpose special parole on a defendant. See Edwards v. Cross , 801 F.3d 869, 877–79 (7th Cir. 2015) (holding that the Commission cannot reimpose special parole); Rich v. Maranville , 369 F.3d 83, 89–91 (2d Cir. 2004) (holding that the Commission can reimpose special parole). We have not yet considered how Johnson affects the Commission's ability to reimpose special parole. The question now before us is whether our decision in Artuso , holding that the Commission cannot reimpose a revoked special parole term, remains valid after Johnson . We conclude that it does not.

We find the Second Circuit's reasoning and analysis in Rich persuasive. In Rich , the Second Circuit held that Johnson abrogated the Second Circuit's version of Artuso because it was based on an interpretation of the supervised release statute that the Supreme Court held was erroneous. Rich , 369 F.3d at 89–90. The Second Circuit held that Johnson compels an interpretation of § 841(c) that allows the Commission to "reimpose" special parole after revocation of a special parole term. Id. The reimposed special parole term may be the original special parole term less any time spent in custody as a result of revoked special parole. See Artuso , 74 F.3d at 69 ; Edwards , 801 F.3d at 872 ; Rich , 369 F.3d at 85.

Analogous to the Second Circuit's decision, our decision in Artuso was expressly based on the now-abrogated analysis in Holmes of the term "revoke." Artuso , 74 F.3d at 71 ("The reasoning of Holmes controls our decision in this case.... The language of former section 841(c) [governing special parole] is nearly identical to that of section 3583(e)(3) [governing supervised release]. In particular, former section 841(c) and section 3583(e)(3) both used the term revoke in identical contexts to mean cancel or rescind.") (citation omitted). In Artuso , we concluded that the word "revoke" meant "cancel" within the context of revoking a special parole term and that once cancelled, any remaining parole would be regular parole and not special parole. Id. In Johnson , the Supreme Court concluded that under § 3583, the term "revoke" meant "recall," thus revocation of supervised release under the statutory text did not extinguish, cancel, or terminate a term of supervised release. Johnson , 529 U.S. at 704, 120 S.Ct. 1795. The Court concluded that once a trial court revokes the supervised release term...