           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                                               Fifth Circuit

                                                                             FILED
                                                                            July 13, 2009
                                       No. 08-40817
                                                                       Charles R. Fulbruge III
                                                                               Clerk
MICHAEL C. ANTONELLI

                                                   Petitioner-Appellant
v.

HARRY LAPPIN, Director,

                                                   Respondent-Appellee




                   Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 1:04-CV-253


Before DAVIS, OWENS, and HAYNES, Circuit Judges.
PER CURIAM:*
       Michael C. Antonelli, federal prisoner # 45053-164, filed a habeas corpus
petition under 28 U.S.C. § 2241 in the United States District Court for the
Eastern District of Texas asserting a “parole problem.” Specifically, Antonelli
challenged the effect of his 1997 bank fraud conviction on the United States
Parole Commission’s (“the Commission”) decision to forfeit nineteen months of
his “street time.” The district court denied Antonelli’s petition. We VACATE the


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-40817

district court’s opinion and REMAND for further proceedings in accordance with
this opinion.


                                        I. FACTS
       In 1978, Antonelli was convicted and sentenced in the United States
District Court for the Northern District of Illinois to twenty-two years’
imprisonment for conspiring to commit an offense against the United States,
misappropriating funds of a bank insured by the Federal Deposit Insurance
Corporation, possessing destructive devices, destruction of property by
explosives, and carrying a firearm during the commission of a felony. Antonelli
was released on parole on February 11, 1986 but was arrested for bank fraud in
September of 1987. Ten years later, the Government charged and obtained a
conviction against Antonelli for this offense. As a result of Antonelli’s bank
fraud conviction, the Commission ordered that the “street time” served by
Antonelli from February 11, 1986 through September 20, 1987 be forfeited.1
Antonelli’s appeal of the Commission’s decision was unsuccessful.
       In 1999, Antonelli was once again released on parole, but in 2001, the
Commission issued a warrant for Antonelli for drug usage and failure to submit
to drug testing. Later that same year, Antonelli was arrested for bank robbery.
The Commission received notice of Antonelli’s arrest on October 16, 2001.
Antonelli’s arrest ultimately resulted in a conviction and a sentence of seventy-
two months’ imprisonment. On September 12, 2002, the Commission issued a




       1
         Under 28 C.F.R. § 2.52(c)(2), the Commission may forfeit the time that a parolee has
spent in the community (i.e., “street time”) where the parolee has incurred a conviction for
criminal conduct while under parole supervision. The Commission’s original order forfeiting
Antonelli’s “street time” was issued on October 13, 1998. However, the Commission
mistakenly used September 2, 1987 as the termination point of the forfeiture and therefore
issued a corrected order in 1999 using September 21, 1987 as the termination point of the
forfeiture.

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                                   No. 08-40817

supplement to its warrant and ordered that the warrant be maintained as a detainer.
      On April 24, 2004, Antonelli filed this petition for writ of habeas corpus
pursuant to § 2241.      He alleged that his 1997 bank fraud conviction was
unconstitutional because: (1) he was “denied counsel at a critical stage of the
trial”; (2) he was denied access to his legal papers; and (3) he was incompetent
to stand trial.     Consequently, Antonelli argued, the Commission acted
unlawfully by using his 1997 bank fraud conviction to forfeit nineteen months
of his “street time.” The effect of this forfeiture as explained by Antonelli is that
nineteen months of parole have now been “tacked on” to the end of the present
sentence he is serving, thereby “making the time [he must] serve 19 months
longer than it would otherwise be” without this “ancient” and “unconstitutional
conviction.” Antonelli requested that the district court “vitiate” his 1997 bank
fraud conviction and order “[the Commission] and the Federal Bureau of Prisons
to shorten [his] future parole term . . . by . . . 19 months.”
      The magistrate judge filed, and the district court ultimately adopted, a
report and recommendation to dismiss Antonelli’s petition, concluding that
because Antonelli was no longer in custody for the 1997 conviction, the court
lacked jurisdiction to consider his challenges. However, on June 14, 2005, this
Court vacated the district court’s judgment. Antonelli v. Lappin, 134 F. App’x
700, 701 (5th Cir. 2005). This Court held in relevant part:
      To the extent that Antonelli sought to attack his 1997 conviction,
      the district court correctly concluded that he could not do so.
      However, Antonelli also indicated in his petition that he was
      attacking a “parole problem” and the forfeiture of 19 months of
      “street time.”

      To the extent Antonelli is challenging a decision by the United
      States Parole Commission and its effects on his parole, he may
      proceed under 28 U.S.C. § 2241. Because Antonelli challenges his
      1997 conviction in the context of its effect on his outstanding



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      sentence of parole, the district court had the authority to consider
      the merits of those claims.
Id. (internal citations omitted, emphasis added). We then vacated the district
court’s judgment and remanded the case to the district court to consider the
merits of the § 2241 petition.
      On remand, the magistrate judge again recommended denying Antonelli’s
petition. The magistrate judge concluded that because Antonelli’s offense was
punishable by a term of imprisonment, the Commission was statutorily required
to forfeit his “street time.” The report and recommendation went on to state:
      [A] parolee may not collaterally attack a conviction upon which a
      decision to revoke parole or other action taken by the Commission
      was based. See Frick v. Quinlin, 631 F.2d 37, 39 (5th Cir. 1980);
      United States v. Williams, 558 F.2d 224, 227–28 (5th Cir. 1977).
      “Obviously a parolee cannot relitigate issues determined against
      him in other forums, as in the situation presented when the
      revocation is based on conviction of another crime.” Morrissey v.
      Brewer, 408 U.S. 471, 490 (1972).
Antonelli v. Gaines, No. 1:04cv253 (E.D. Tex. Nov. 19, 2007). The district court
adopted the magistrate judge’s report and recommendation, denying Antonelli’s
§ 2241 petition. Antonelli v. Gaines, No. 1:04cv253 (E.D. Tex. June 10, 2008).
Antonelli appeals.


                         II. STANDARD OF REVIEW
      When considering a district court’s denial of habeas relief under § 2241,
we review findings of fact for clear error and issues of law de novo. Royal v.
Tombone, 141 F.3d 596, 599 (5th Cir. 1998).


                                 III. ANALYSIS
      On remand, we determined that the district court “had the authority to
consider the merits of those claims.”       Instead of considering the merits of



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Antonelli’s claims, the district court ruled that “those claims” constituted a
collateral attack on the original conviction, which Antonelli could not challenge.
However, the district court did not consider the merits of the claims. Under the
law of the case doctrine, our prior decision in this matter is binding on this
panel, as well as the district court. Fuhrman v. Dretke, 442 F.3d 893, 896 (5th
Cir. 2006).2 “Under this doctrine, a prior decision will be followed without
re-examination unless, inter alia, ‘there has been an intervening change of law
by a controlling authority.’” Pondexter v. Quarterman, 537 F.3d 511, 523 (5th
Cir. 2008) (quoting United States v. Agofsky, 516 F.3d 280, 283 (5th Cir. 2008)).
There has been no such intervening change of law.3
       The Government offers no arguments in response to Antonelli’s contention
that the district court did not follow our mandate and make the determinations
required by our prior opinion, and no reason for this failure is apparent from the
record. Accordingly, to the extent Antonelli challenges the effect of his 1997
conviction on his outstanding parole sentence, we again remand this case to the
district court with instructions to make factual findings and appropriate legal
conclusions based on those findings as to the merits of Antonelli’s claims
asserted in his § 2241 petition. These determinations are not for the purpose of

       2
          “The law of the case doctrine provides that ‘an issue of law or fact decided on appeal
may not be reexamined either by the district court on remand or by the appellate court on a
subsequent appeal.’” Fuhrman, 442 F.3d at 896 (quoting United States v. Becerra, 155 F.3d
740, 752 (5th Cir. 1998)). Because none of the exceptions to the law of the case doctrine apply
here, the mandate rule required the district court on remand to “‘implement both the letter
and the spirit of [our prior] mandate.’” Id. at 897 (quoting Becerra, 155 F.3d at 753). The
district court was not free to “disregard the ‘explicit directives’ of [this] [C]ourt.” Id. (quoting
Becerra, 155 F.3d at 753).
       3
        In objecting to the report and recommendation, Antonelli argued that he was entitled
to merits review under Daniels v. United States, 532 U.S. 374 (2001), and Lackawanna County
Dist. Attorney v. Coss, 532 U.S. 394 (2001). We need not address these arguments here
because the same result is required under the law of the case doctrine. Moreover, given that
those cases were decided prior to the 2005 remand order issued in this case, it is clear that
they do not constitute an intervening change of law, and in any event, we must assume that
the prior panel took them into account.

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                                 No. 08-40817

declaring the 1997 conviction invalid for all purposes but rather for the limited
purpose of determining whether the 1997 conviction requires the forfeiture of
nineteen months of “street time,” as determined by the Parole Commission.


                              IV. CONCLUSION
      Accordingly, we VACATE the district court’s judgment and REMAND for
further proceedings in accordance with this opinion.


VACATED and REMANDED.




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