Anderson v. Warden, FCC Coleman - USP I

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

OCALA DIVISION

MELVIN ANDERSON,

Petitioner,

vs. Case No.: 5:17-cv-335-Oc-32PRL

WARDEN, FCC COLEMAN, USP I

Respondent.

/

ORDER

Melvin Anderson (“Petitioner”; BOP Register No. 82106–020), a federal

inmate, initiated this case by filing a petition for writ of habeas corpus under

28 U.S.C. § 2241. (Doc. 1, Petition). Petitioner names as Respondent the Warden

of FCC Coleman, USP I (“Warden”). Petitioner challenges two things: first, the

United States Parole Commission’s decision in February 2017 to deny him

release on parole; and second, a decision by the Warden to increase his security

classification, which led to a change in the conditions of his confinement.

Respondent filed a brief in opposition (Doc. 5, Response) along with exhibits

(Doc. 5-1, “Resp. Ex.”). Petitioner filed a reply brief. (Doc. 12, Reply).

Afterward, Petitioner moved to voluntarily dismiss the second claim (Doc.

47), which the Court granted (Doc. 58). Thus, the only remaining claim is the

challenge to the denial of parole in Ground One.1 The Court instructed

Respondent to file a supplemental response regarding the parole claim, which

Respondent has done. (Doc. 61, Supplemental Response; Doc. 61-1, Exhibits).

The Court authorized Petitioner to file a supplemental reply brief by August 28,

2020 (Doc. 60), but as of this date, the Court has received none. Therefore, the

case is ripe for a decision. For the reasons below, the Petition is due to be denied.

I. Background

Petitioner is currently confined at Beaumont USP serving a sentence of

life imprisonment. He was confined at FCC Coleman when he filed the instant

petition, and therefore the Court has jurisdiction. See Hajduk v. United States,

764 F.2d 795, 796 (11th Cir. 1985) (a § 2241 habeas petition must be filed in the

district where the petitioner is incarcerated).

In 1988, Petitioner pleaded guilty in the United States District Court for

the Middle District of Georgia to one count of second-degree murder. See

Anderson v. United States, 948 F.2d 704, 705-06 (11th Cir. 1991). Petitioner

admitted that he murdered a sergeant in the United States Army at Fort

Benning, Georgia, for which the district court sentenced him to life in prison.

See id. Since being convicted, Petitioner has filed numerous motions,

1 This moots the parties’ supplemental briefing regarding the exhaustion of

administrative remedies related to ground two. (See Docs. 23, 26, 29).

complaints, and appeals attacking the validity of his sentence or the conditions

of his confinement, none of which have succeeded. See Anderson v. United

States, No. 4:87-cr-1649(CDL), 2005 WL 2277484, at *2-4 (M.D. Ga. Sep. 6,

2005) (recounting Petitioner’s motions and appeals from 1989 to 2005);

Anderson v. United States, No. 4:87-cr-1649(CDL), 2010 WL 1486979, at *1-2

(M.D. Ga. Apr. 12, 2010) (recounting additional motions filed between 2007 and

2009); Anderson v. United States, No. 5:10-cv-431-Oc-27PRL, 2014 WL

2625194, at *1 (M.D. Fla. Jun. 12, 2014) (dismissing civil rights complaint,

pursuant to 28 U.S.C. § 1915(g), because “Plaintiff had more than three civil

cases or appeals dismissed as frivolous or for failure to state a claim upon which

relief may be granted.”).

On February 24, 2017, the United States Parole Commission issued a

Notice of Action (NOA) in which it informed Petitioner that it was denying him

release on parole pursuant to 18 U.S.C. § 4206(d).2 (Doc. 1 at 8; Doc. 61-1 at 12).

In explaining its decision, the Parole Commission cited three incidents

involving Petitioner: (1) assaulting a correctional officer in 1993; (2) threatening

to kill a correctional officer in 1994; and (3) fighting in March 2016. The

2 Petitioner’s right to any parole is governed by the Parole Commission and

Reorganization Act of 1976 (Parole Act), Pub. L. No. 94–233, § 2, 90 Stat. 219 (1976)

(formerly codified at 18 U.S.C. §§ 4201–4218), under which he became eligible for

parole consideration in 2017. See 18 U.S.C. § 4206(d). Although parole has been

abolished, the Parole Act still applies to Petitioner because of the age of his conviction.

Commission stated that “the recent incident of fighting is evidence that after

more than 28 years in prison you are still unable to resolve conflict without

resorting to violence.” (Doc. 61-1 at 12). The Commission also cited statements

by Petitioner in which he minimized his culpability for the crime, which the

Commission considered to be “evidence of [Petitioner’s] lack of acceptance of

responsibility.” (Id.). According to the Commission, Petitioner’s failure to accept

responsibility, “factored with [his] serious violations of the rules of the

institution, creates a reasonable probability [that he] will commit a Federal,

State, or local crime if granted parole at this time.” (Id.). The Commission

notified Petitioner that he was “scheduled for a statutory interim hearing

during February 2019. At that time, your case will be reviewed again pursuant

to 18 U.S.C. § 4206(d).” (Id.).3

Petitioner appealed the Commission’s decision to the National Appeals

Board. (See Doc. 61-1 at 26-27). Petitioner argued that: (1) the Commission’s

decision relied on false information because the 1993 and 1994 rule violations

were based on false allegations, (2) the Commission mischaracterized the 1993,

1994, and 2016 rule violations as serious, and (3) mitigating circumstances

3 Petitioner had an interim parole hearing on March 25, 2019. On June 12, 2019,

the Parole Commission again denied parole. (Doc. 61-1 at 29). Petitioner appealed that

decision as well to the National Appeals Board, which affirmed the denial of parole on

August 2, 2019. (Id. at 31-32). Petitioner has brought a § 2241 petition in the Eastern

District of Texas concerning the 2019 denial of parole. See Anderson v. Warden, USP

Beaumont, No. 1:19-cv-530-MJT-KFG (E.D. Tex.). That case is still pending.

justified a different decision because the facts of the 1993 and 1994 rule

violations had been misrepresented or taken out of context. (See id.). The

National Appeals Board rejected each of these arguments and affirmed the

denial of parole on July 20, 2017. (Id.).

II. The Section 2241 Petition

Petitioner challenges what he calls “an erroneous parole decision.” (Doc.

1 at 2). As in his appeal to the National Appeals Board, he contends that the

Parole Commission’s NOA “is based on false and misleading information.” (Id.

at 3, 4). Petitioner denies threatening to kill a correctional officer in 1994, and

asserts that both the 1993 assault and 1994 threat were minor incidents that

involved no injuries. (Id. at 5). He also contends that the 1993 and 1994

incidents were not serious rule violations because they occurred more than 20

years prior. (Id.). Likewise, in his affidavit, Petitioner insists that the fight that

occurred in March 2016 “was taken out of context and was a minor incident.”

(Id. at 9). Petitioner contends that during the previous 18 years he has

committed only five minor rule infractions. (Id. at 5).

Petitioner also claims he did not receive the Parole Commission’s NOA

until April 4, 2017 (after being transferred to FCC Coleman on March 23, 2017),

even though the NOA was dated February 24, 2017. (Id. at 3). Petitioner filed

his appeal of the NOA on May 3, 2017, but he claims his appeal is being

“impeded and obstructed.” (Id. at 3, 6). He complains that more than 30 days

elapsed without receiving a response to the appeal. (Id.). As relief, Petitioner

asks that the Parole Commission either resolve his appeal “on the merits” or

grant him mandatory parole under 18 U.S.C. § 4206(d), and that the Court

grant any other relief it deems appropriate. (Id. at 7).

Petitioner signed and filed the habeas petition on July 13, 2017. (See Doc.

1 at 7, 9). The National Appeals Board decided Petitioner’s appeal on the merits

one week later, on July 20, 2017. (See Doc. 61-1 at 26). Thus, to the extent

Petitioner complains that his appeal was being impeded or obstructed, that

claim is moot.4 However, the Court will still consider Petitioner’s claim that the

Parole Commission erroneously denied him parole.

III. Discussion

The writ of habeas corpus may extend to a person who “is in custody in

violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.

§ 2241(c)(3). “A prisoner sentenced by a federal court … may file a petition for

a writ of habeas corpus to challenge the execution of his sentence, such as the

4 To the extent Petitioner complains about the National Appeals Board’s failure

to decide his appeal within 30 days, the applicable regulation gives the National

Appeals Board 60 days to act from receipt of the appellant’s papers. 28 C.F.R. § 2.26(c).

In any event, “a claim that the BOP violated its own policies or procedures, when those

policies and procedures were not mandated by statute or the constitution, does not

constitute a violation of federal law.” Arguello v. English, No. 5:15-cv-145/LAC/EMT,

2016 WL 1580269, at *5 (N.D. Fla. Mar. 18, 2016) (citing Reeb v. Thomas, 636 F.3d

1224, 1227 (9th Cir. 2011)).

deprivation of good-time credits or parole determinations.” McCarthan v. Dir.

of Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076, 1092-93 (11th Cir. 2017) (en

banc). Because Petitioner challenges a parole determination, he may proceed

under § 2241.

An inmate must exhaust administrative remedies before seeking habeas

relief under § 2241. Santiago-Lugo v. Warden, 785 F.3d 467, 475 (11th Cir.

2015). However, this exhaustion requirement is not jurisdictional. Id. Although

Respondent argues that Petitioner failed to exhaust administrative remedies

regarding the parole claim, the record shows that Petitioner appealed the

Parole Commission’s decision to the National Appeals Board, which is the final

decisionmaker on such matters. See 28 C.F.R. § 2.26(c) (“Decisions of the

National Appeals Board shall be final.”). Therefore, the Court finds that

Petitioner has exhausted his administrative remedies, and the Court will

address the claim on the merits.

Petitioner contends he is entitled to “mandatory” parole under 18 U.S.C.

§ 4206(d). “Although the applicable provision is often referred to as the

‘mandatory parole’ provision, in fact the provision is not mandatory.” Bowers v.

U.S. Parole Comm’n, 775 F. App’x 504, 506 n.1 (11th Cir. 2019). Rather, “the

Commission can deny parole under this provision under one of three

circumstances: if the prisoner has (1) seriously or (2) frequently violated

institution rules or (3) if there is a reasonable probability that the prisoner will

commit another crime in the future.” Id.; accord 28 C.F.R. § 2.53(a). A

neighboring provision to § 4206, § 4207, “states without limitation that, in a

parole proceeding under ‘this chapter’ (which includes § 4206(d)), ‘[t]here shall

also be taken into consideration such additional relevant information

concerning the prisoner (including information submitted by the prisoner) as

may be reasonably available.’” Bowers, 775 F. App’x at 522 (Jordan, J.,

concurring) (quoting 18 U.S.C. § 4207).

“The power of the United States Parole Commission to make

[substantive] parole decisions is well-settled and has been protected by the

courts.” Meagher v. Clark, 943 F.2d 1277, 1283 (11th Cir. 1991). “The Parole

Commission’s substantive decisions to grant or deny parole—including its

factual findings and applications of the Parole Act to individual cases—are

reviewed only for abuse of discretion.” Bowers, 775 F. App’x at 515 (citing

Glumb v. Honsted, 891 F.2d 872, 873 (11th Cir. 1990)). “A federal court will not

reverse a decision of the Commission unless it involves flagrant, unwarranted,

or unauthorized action that constitutes an abuse of the Commission’s

discretion.” Glumb, 891 F.2d at 873. By contrast, “to the extent the

Commission’s denial of Petitioner’s parole was based on a legal interpretation

of § 4206(d) with which the non-prevailing party disagrees, [the Court]

review[s] that interpretation de novo, subject to whatever deference … that

interpretation is due.” Bowers, 775 F. App’x at 515 (citing Bender v. U.S. Parole

Comm’n, 802 F.3d 690, 695-96 (5th Cir. 2015)).

The Parole Commission’s 2017 NOA was a substantive parole

determination, not a legal interpretation of § 4206(d). The Parole Commission

explained:

The Commission finds you have seriously violated the rules of the

institution, as evidenced by an assault on a correctional officer in

1993, threatening to kill an officer in 1994, and most recently for

fighting, in March 2016. The Commission also finds the recent

incident of fighting is evidence that after more than 28 years in

prison, you are still unable to resolve conflict without resorting to

violence. Also, you continue to make statements to minimize your

culpability in your crime, which the Commission finds is evidence

of your lack of acceptance of responsibility for your crime. This[,]

factored with your serious violations of the rules of the institution,

creates a reasonable probability you will commit a federal, State, or

local crime if granted parole at this time.

(Doc. 61-1 at 12). The National Appeals Board affirmed this decision on appeal.

(Id. at 26-27). As the 2017 NOA shows, the Parole Commission did not

promulgate a legal interpretation of § 4206(d), but merely applied the Parole

Act to the facts of Petitioner’s case. See Bowers, 775 F. App’x at 518-19 (finding

that Parole Commissions’ decision was a substantive parole determination

where the Commission “avoided adopting a general rule” and refrained from

adopting a particular interpretation of the statute). Because the Parole

Commission’s decision was a substantive parole determination, it is subject to

the abuse-of-discretion standard. Id. at 515.

The 2017 NOA does not reflect that the Parole Commission’s decision

involved “flagrant, unwarranted, or unauthorized action that constitutes an

abuse of the Commission’s discretion.” Glumb, 891 F.2d at 873. The Commission

explained that Petitioner was not fit for parole because (1) he had committed

serious rule violations and (2) he was likely to commit a new crime if released

on parole, as evidenced by the rule violations and statements by him

minimizing his culpability for the crime. (Doc. 61-1 at 12). Although Petitioner

complains that the 1993 and 1994 rule violations – for assaulting a correctional

officer and threatening to kill a correctional officer, respectively – were based

on false allegations and that the facts were taken out of context, he received an

incident report and was afforded a disciplinary hearing for both violations. (Doc.

61-1 at 4, ¶ 7 (Declaration of Krystal Lemos)). The Disciplinary Hearing Officer

(DHO) found that Petitioner was responsible for the infractions and sanctioned

him accordingly. (Id.; see also Doc. 61-1 at 16 (DHO sanction for assault in 1993,

Incident No. 123541); id. at 15 (DHO sanction for making a threat in 1994,

Incident No. 203257)). Petitioner had the opportunity to appeal the DHO’s

findings – which he did – and the sanctions were upheld. (Id. at 19-20 (denial

of appeal regarding Incident No. 123541); id. at 21-22 (denial of appeal

regarding Incident No. 203257)). Petitioner was afforded the same process for

the 2016 fighting incident (Incident No. 2824067), the sanction for which was

also upheld on appeal. (Id. at 4, ¶ 7; see also id. at 14, 23-24). Thus, the Parole

Commission did not abuse its discretion in relying on the 1993, 1994, and 2016

rule violations to deny parole.

Likewise, the Court cannot say that the Parole Commission abused its

discretion in characterizing these infractions as serious violations of the

institution’s rules. As the National Appeals Board explained:

You argue that the Commission should consider [the 1993, 1994,

and 2016 rule violations] to be minor offenses because no serious

injuries occurred in the violations. You also claim that these

violation[s] of institutional rules are taken out of … context.

However, each of these individual violation[s] of institutional rules

is an offense standing alone that would allow the Commission to

revoke parole for a previously paroled inmate sending them back to

prison. Therefore, the Commission’s consideration of the severity of

these violations of institutional rules and their repeated nature is

justified.

(Doc. 61-1 at 26).

Finally, while Petitioner challenges the Parole Commission’s finding that

he committed serious rule violations, he does not meaningfully challenge the

Commission’s other finding that there is a reasonable probability he would

commit a new crime if granted parole. (Doc. 61-1 at 12). That finding is an

independently sufficient basis on which to deny parole, apart from whether

Petitioner committed serious rule violations. See 18 U.S.C. § 4206(d) (“[T]he

Commission shall not release such prisoner if it determines that he has

seriously or frequently violated institution rules and regulations or that there

is a reasonable probability that he will commit any Federal, State, or local

crime.” (emphasis added)). The Commission cited statements by Petitioner in

which he minimized his culpability for the crime, which the Commission found

to be “evidence of [Petitioner’s] lack of acceptance of responsibility.” (Doc. 61-1

at 12). Notably, Petitioner does not deny making statements that downplayed

his culpability for the murder. The Commission found that such evidence,

“factored with [Petitioner’s] serious violations of the rules of the institution,

creates a reasonable probability [Petitioner] will commit a Federal, State, or

local crime if granted parole at this time.” (Id.). As with the Commission’s other

findings, the Court cannot say that this ruling was an abuse of discretion.

IV. Conclusion

The Court has reviewed each of Petitioner’s arguments, but finds that

none warrants habeas relief. The Parole Commission’s decision in 2017 to deny

Petitioner release on parole did not involve “flagrant, unwarranted, or

unauthorized action that constitutes an abuse of the Commission’s discretion.”

Glumb, 891 F.2d at 873.

Accordingly, it is hereby ORDERED:

1. Petitioner Melvin Anderson’s Petition for Writ of Habeas Corpus Under

28 U.S.C. § 2241 (Doc. 1) is DENIED, and this case is DISMISSED

WITH PREJUDICE.

2. Petitioner’s Motion to Hear and Determine Habeas Petition (Doc. 46) is

GRANTED to the extent the Court issues this ruling on the Petition for

Writ of Habeas Corpus.

3. Based on the foregoing discussion, Petitioner’s Motion for Summary

Judgment (Doc. 50) is DENIED. Contrary to Petitioner’s assertion in the

Motion for Summary Judgment that his claim regarding the denial of

parole was unopposed, the Respondent opposed the claim on the ground

that the warden of FCC Coleman was the wrong respondent. (Doc. 5 at 1

n.1). The Court directed Respondent to provide supplemental briefing on

the merits in light of Rivas v. Warden, FCC Coleman — USP I, 711 F.

App’x 585 (11th Cir. 2018) (see Doc. 58), which had not been decided when

Respondent filed its initial response on September 25, 2017. Respondent

has since filed a response on the merits of the parole claim. (Doc. 61).

4. The Clerk shall enter judgment in favor of Respondent and against

Petitioner, and close the file.

DONE AND ORDERED at Jacksonville, Florida this 15th day of

September, 2020.

LH, (7 Cr

TIMOTHY J. CORRIGAN

United States District Judge

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Copies:

Counsel of record

Pro se petitioner