# Anderson v. Warden, FCC Coleman - USP I

> District Court, M.D. Florida · September 15, 2020

URL: https://www.frixlaw.com/law-library/cases/10105901

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** September 15, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

13

lc 19

Copies:
Counsel of record
Pro se petitioner

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10105901. Public record. Not legal advice.