                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-31-2008

Oliver Boling v. Troy Williamson
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2583




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Recommended Citation
"Oliver Boling v. Troy Williamson" (2008). 2008 Decisions. Paper 19.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/19


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BLD-14                                                        NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                      No. 08-2583
                                      ___________

                                  OLIVER M. BOLING,
                                                  Appellant

                                            v.

                           WARDEN TROY WILLIAMSON
                       ____________________________________

                      On Appeal from the United States District Court
                          for the Middle District of Pennsylvania
                              (D.C. Civil No. 3-07-cv-00855)
                        District Judge: Honorable Edwin M. Kosik
                       ____________________________________

  Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or Summary
             Action Pursuant to Third Circuit L.A.R. 27.4 and I.O.P. 10.6
                                   October 17, 2008

              Before: MCKEE, FISHER and CHAGARES, Circuit Judges

                           (Opinion filed: December 31, 2008 )
                                        _________

                                        OPINION
                                        _________

PER CURIAM

      This is an appeal from the District Court’s dismissal of Oliver M. Boling’s habeas

corpus petition. For the following reasons, we will dismiss this appeal. See 28 U.S.C.

§ 1915(e)(2)(B)(i).
       Boling was paroled from his sentence in the District of Columbia by the D.C.

Parole Board (“Board”) in 1998. His parole was revoked in 2000.1 Boling was

transferred from the Board to the United States Parole Commission (“Commission”),

pursuant to the National Capital Revitalization and Self-Government Act of 1997. See

Pub. L. No. 105-33, § 11231(a)(1), 111 Stat. 712 (1997) (codified as amended at D.C.

Code § 24-131 (2001)). Initially, in 2003, the Commission ordered that Boling serve to a

presumptive reparole after 72 months, on April 9, 2005. The Commission, citing the

discovery of new information, ordered a special reconsideration hearing in 2004. At that

hearing, the Commission voided its previous determination and ordered that Boling serve

to a fifteen year reconsideration hearing in December 2018.

       On May 5, 2005, Boling filed a habeas corpus petition in the United States District

Court for the Middle District of Pennsylvania arguing that the Board violated his

procedural due process rights in revoking his parole. The District Court denied his

petition. Boling appealed, and we affirmed the District Court’s order. See Boling v.

Smith, 277 F.App’x 174 (3d Cir. 2008)(unpublished).

       On May 10, 2007, Boling filed the instant habeas corpus petition pursuant to 28

U.S.C. § 2241, alleging that the Commission’s order that he serve to a fifteen year

reconsideration hearing was discriminatory, vindictive, and retaliatory. The District




   1
    For a more detailed discussion of the revocation of Boling’s parole, see Boling v.
Smith, 277 F. Appx. 174 (3d Cir. 2008)(unpublished).

                                             2
Court dismissed the petition as an abuse of the writ.

       We have recognized “that the abuse-of-the-writ doctrine applies to section 2241

petitions; thus, a petitioner may not raise new claims that could have been resolved in a

previous action.” Queen v. Miner, 530 F.3d 253, 255 (3d Cir. 2008) (per curiam). Boling

had an opportunity to challenge the Commission’s actions in his 2005 habeas corpus

petition but failed to do so. See Boling, 277 F. App’x at 176 n.1. Therefore, Boling must

establish either: 1) cause and prejudice, i.e., that some objective external factor impeded

his efforts to raise the claim earlier and that actual prejudice resulted from the alleged

errors; or 2) a fundamental miscarriage of justice would result from a failure to entertain

his claim. See United States v. Roberson, 194 F.3d 408, 410 (3d Cir. 1999).

       We agree with the District Court that Boling has failed to demonstrate cause and

prejudice. Boling argued that he has not filed a previous petition raising the same issues

he raises in the instant action. The Supreme Court has held that the abuse of writ doctrine

precludes inmates from relitigating the same issues in subsequent petitions or from

raising new issues that could have been raised in an earlier petition. See McCleskey v.

Zant, 499 U.S. 467, 489 (1991) (“Our recent decisions confirm that a petitioner can abuse

the writ by raising a claim in a subsequent petition that he could have raised in his first,

regardless of whether the failure to raise it earlier stemmed from a deliberate choice.”)

Since the events leading to Boling’s complaint occurred prior to 2005, he should have

raised the instant claims in his first petition.



                                                   3
      Likewise, Boling has failed to show that a fundamental miscarriage of justice

would occur if his petition is dismissed as an abuse of the writ. A fundamental

miscarriage of justice may arise where “a petitioner supplements a constitutional claim

with a colorable showing of factual innocence.” Id. at 495 (quotation and citation

omitted). Boling has not presented a colorable claim of factual innocence.

      Accordingly, because Boling’s appeal lacks arguable legal merit, we will dismiss it

pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).




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