                                                                            FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                    UNITED STATES COURT OF APPEALS January 24, 2008

                                  TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                        Clerk of Court


 OLIVER M. BOLING,

               Petitioner - Appellant,                      No. 07-3109
          v.                                                (D. Kansas)
 R. MUNDT, Warden, USP-                            (D.C. No. 04-CV-3078-RDR)
 Leavenworth; UNITED STATES
 PAROLE COMMISSION,

               Respondents - Appellees.


                            ORDER AND JUDGMENT *


Before HENRY, Chief Judge, TYMKOVICH and HOLMES, Circuit Judges. **



      Oliver Boling, proceeding pro se, appeals the district court’s denial of his

petition for writ of habeas corpus under 28 U.S.C. § 2241. Though now

incarcerated in the United States penitentiary in Lewisburg, Pennsylvania, Mr.

Boling filed the petition while he was a federal prisoner in the United States



      *
         This order and judgment is not binding precedent except under the
doctrines of the law of the case, res judicata and collateral estoppel. It may be
cited, however, for its persuasive value consistent with F ED . R. A PP . P. 32.1 and
10 TH C IR . R. 32.1.
      **
        After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See F ED . R. A PP . P. 34(a)(2); 10 TH C IR . R. 34.1(G).
Penitentiary in Leavenworth, Kansas. As we explain in greater detail below, Mr.

Boling challenges the decision of the United States Parole Commission (the

Commission) to revoke his parole and defer reconsideration of parole beyond the

length of time recommended under the Commission’s guidelines.

      Mr. Boling advances three principal arguments. First, he contends that the

Commission violated the Ex Post Facto Clause of the United States Constitution

by applying parole regulations in effect at the time his parole was revoked and not

those in effect when he was first convicted of a felony. Second, he argues that

the Commission abused its discretion by extending his parole revocation beyond

the recommendation under its own guidelines. Third, Mr. Boling claims that the

Commission impermissibly “double counted” by considering the same conduct to

formulate his guidelines range as it did to determine that his re-parole date should

exceed the guidelines recommendation. Taking jurisdiction under 28 U.S.C. §

1291, we affirm the district court’s order.

                                I. BACKGROUND

      Mr. Boling was convicted of sodomy in the District of Columbia in 1976.

In 1983, he was convicted of assault with a dangerous weapon. At that time, a

D.C. court sentenced Mr. Boling to a prison term of 23 years and 8 months to 71

years and 6 months. In February 1999, the District of Columbia Board of Parole

(D.C. Board) released Mr. Boling, subject to a 48-year period of supervision, until

June 2047. Within months of Mr. Boling’s release, D.C. authorities arrested Mr.

Boling after he allegedly struck his wife with a cane and hit her with his fists.
Assault charges against Mr. Boling were ultimately dismissed. However, on

April 13, 1999, the D.C. Board issued a parole violation warrant, citing Mr.

Boling’s alleged assault on his wife and failure to abide by all laws as a violation

of the conditions of his parole.

      Mr. Boling’s wife moved to Connecticut and obtained a temporary

protective order that prevented Mr. Boling from visiting her. Authorities in

Connecticut arrested Mr. Boling later in April 1999 after he initiated another

encounter with his wife. As a result of that incident, Mr. Boling was convicted of

violating a protective order and disorderly conduct, and a Connecticut court

sentenced Mr. Boling to a term of imprisonment of approximately one year. Per

the terms of the D.C. Board’s April 13, 1999, parole violation warrant, the United

States Marshals Service transported Mr. Boling back to the District of Columbia

after he completed his Connecticut sentence in February 2000. In July 2000, the

D.C. Board revoked Mr. Boling’s parole and set a hearing date for reconsideration

of Mr. Boling’s parole. In July 2001, the D.C. Board transferred Mr. Boling to

the custody of the Bureau of Prisons.

      In December 2003, the Commission held a hearing at which it considered

whether to continue Mr. Boling’s imprisonment. Among other things, the

Commission took note of Mr. Boling’s assault of his wife within two months of

his release in 1999. After determining that Mr. Boling should not be paroled at

that time, the Commission was faced with the task of setting a new date for

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reconsideration of Mr. Boling’s parole status. The Commission’s guidelines

calculation yielded a recommended reconsideration date of 48-60 months.

However, the Commission concluded that Mr. Boling’s return to violent criminal

activity indicated that he posed a more serious risk than its guidelines calculations

suggested. Accordingly, the Commission’s decision, rendered in a Notice of

Action dated December 19, 2003 (December 2003 Notice of Action), set a

reconsideration date of 72 months.

      In March 2004, Mr. Boling filed a petition for a writ of habeas corpus

under 28 U.S.C. § 2241. His petition challenged the December 2003 Notice of

Action. In November 2004, while Mr. Boling’s petition was pending before the

district court, the Commission held another hearing to reconsider the December

2003 Notice of Action. The Commission considered newly received reports that

Mr. Boling had threatened to kill or harm his wife and harm her family on

numerous occasions. The Commission also took into consideration the newly

reported fact that Mr. Boling had previously attempted to kill his wife by

physically attacking her on more than one occasion. In light of this information,

the Commission entered a Notice of Action, dated January 5, 2005 (January 2005

Notice of Action), which extended Mr. Boling’s parole reconsideration date to

December 2018. The January 2005 Notice of Action voided the December 2003

Notice of Action.




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                                 II. DISCUSSION

      Mr. Boling argues that the Commission erred in its December 2003 Notice

of Action, which set a 72-month reconsideration date for his parole. First, Mr.

Boling claims that the Commission’s application of D.C. law in effect at the time

of his parole revocation (as opposed to the time at which he committed his

crimes) violated the Ex Post Facto Clause of the United States Constitution.

Second, he contends that the Commission’s upward departure from its own

guidelines in setting his parole reconsideration date violated his right to due

process of law. Third, he asserts that the Commission erred in relying on the

same factors to establish his guidelines range and to depart from that range.

A. Justiciability

      We first consider whether Mr. Boling’s challenge to the December 2003

Notice of Action presents a justiciable case or controversy. Mr. Boling’s petition

before the district court asked the court to vacate the Commission’s December

2003 Notice of Action, based upon alleged violations of federal law, and to order

a new hearing. While Mr. Boling’s petition was pending before the district court,

the Commission’s November 2004 reconsideration hearing and January 2005

order voided the December 2003 Notice of Action. Thus, Mr. Boling obtained a

new hearing before the Commission, though the Commission’s decision was

obviously not a favorable one for Mr. Boling. Mr. Boling did not amend or seek

to withdraw his petition before the district court in light of the January 2005

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Notice of Action. The district court considered the merits of Mr. Boling’s claims

“to [the] extent this action was not rendered moot by the Notice of Action dated

January 5, 2005.” Rec. doc. 34, at 5.

       Respondents have not filed briefs on appeal but argued below that the

action was not moot and contended that “petitioner’s allegations of constitutional

error in the application of the Commission guidelines and in setting of re-parole

or reconsideration outside the parole guidelines arguably remain issues for

judicial review.” Id. Indeed, Mr. Boling’s arguments on appeal refer mainly to

the December 2003 Notice of Action, but they are limited to objections to several

of the Commission’s standard procedures for calculating the appropriate date for

reconsideration of a prisoner’s parole status. The Commission followed these

procedures in creating the January 2005 Notice of Action, just as it followed them

in rendering the December 2003 Notice of Action. Therefore, Mr. Boling’s

claims effectively attack the January 2005 Notice of Action, even if they do not

explicitly refer to it.

       Under these limited circumstances, we see no reason to require Mr. Boling

to file a new petition and to author new briefs that refer to the January 2005

Notice of Action rather than the December 2003 Notice of Action in order to raise

the same constitutional claims. Our decision to consider the merits of Mr.

Boling’s claims is consistent with this Court’s policy of construing pro se

pleadings liberally. See Freeman v. Watkins, 479 F.3d 1257, 1259 (10th Cir.

                                         -6-
2007). Thus, we proceed to Mr. Boling’s claims on appeal.

B. Standard of Review

       As we have noted, “judicial review of Parole Commission determinations is

quite limited.” Fiumara v. O’Brien, 889 F.2d 254, 257 (10th Cir. 1989). “We will

not disturb a decision by the Parole Commission ‘unless there is a clear showing

of arbitrary and capricious action or an abuse of discretion.’” Gometz v. U.S.

Parole Comm’n, 294 F.3d 1256, 1260 (10th Cir. 2002) (quoting Soleto v. Hadden,

721 F.2d 700, 702 (10th Cir. 1983)). “‘The inquiry is not whether the

Commission’s decision is supported by the preponderance of the evidence, or

even by substantial evidence; the inquiry is only whether there is a rational basis

in the record for the Commission’s conclusions embodied in its statement of

reasons.’” Gometz, 294 F.3d at 1260 (quoting Misasi v. U.S. Parole Comm’n, 835

F.2d 754, 758 (10th Cir. 1987)).



1. The Ex Post Facto Clause

       Mr. Boling argues that the Commission violated the Ex Post Facto Clause

by applying its own guidelines in the December 2003 Notice of Action rather than

the appropriate laws in effect when he committed his first offense in 1976. Like

the district court, we “find[] no merit in this contention.” Rec. doc. 34, at 6.

       Article I of the United States Constitution provides, in part: “No State shall

. . . pass any . . . ex post facto law . . . .” U.S. C ONST . art. I, § 10, cl.1. The

                                             -7-
Supreme Court has explained that the Clause may apply to laws governing parole.

Garner v. Jones, 529 U.S. 244, 249-50 (2000). However, the Court also

explained that when a law “does not by its own terms show a significant risk” of

increased punishment, a prisoner “must demonstrate, by evidence drawn from the

rule’s practical implementation by the agency charged with exercising discretion,

that its retroactive application will result in a longer period of incarceration than

under the earlier rule.” Id. at 255. We agree with the district court that Mr.

Boling “fails to demonstrate that the Commission’s application of the guidelines

subjected [him] to any significant risk of prolonging his incarceration.” Rec. doc.

34, at 7.



2. The Commission’s Upward Departure

       Mr. Boling claims that the Commission upwardly departed from its

guidelines in his case “without good cause.” Aplt’s Br. at 3. The argument

underlying Mr. Boling’s assertion is that the Commission erred by considering

conduct that did not result in a criminal conviction. Like the district court, we

hold “[t]here is no legal support for such a claim.” Rec. doc. 34, at 8.




                                          -8-
3. Double Counting

      Third, and finally, 1 Mr. Boling contends that the Commission

impermissibly “double counted” his offenses by considering the same conduct to

formulate his guidelines range as it did to determine that his re-parole date should

exceed the guidelines range. With the January 2005 Notice of Action, the

Commission voided the 72-month departure date and replaced it with a 15-year

departure date. Nevertheless, Mr. Boling presses forward with the argument, also

applicable to the January 2005, Notice of Action that the Commission relied on

the same information to set the appropriate guideline range as well as to exceed it.



      “Double counting occurs when the Commission justifies a decision beyond

the guidelines by relying on the factors for calculating offense severity under the

guidelines.” Kell v. Parole Comm’n, 26 F.3d 1016, 1020 (10th Cir. 1994).

However, we agree with the district court that double counting has not occurred

merely because the Commission has used information to make two distinct


      1
        Mr. Boling offers a number of claims in his appeal that were not raised
before the district court, including “judicial biasness [sic], racial profiling by the
court, conspiracy by the court, abuse of power by the court, rendering favors to
personal interest groups by the court, and undue excessive time by the court[] in
responding to petitioners [sic] writ. Racist conduct by the court and trading
favors and bribery.” Rec. doc. 36. We will not consider these claims because
they were not argued in the district court. “It is a general rule that this Court will
not consider an issue on appeal that was not raised below.” King v. United States,
301 F.3d 1270, 1274 (10th Cir. 2002).


                                         -9-
determinations. Rec. doc. 34, at 10; Kell, 26 F.3d at 1020 (noting that the

Commission’s consideration of discrete incidents under the guidelines did not

preclude it from considering a “pattern” of behavior, which necessitated

consideration of the same events, in determining that “reincarceration for a period

longer than recommended by the guidelines” was appropriate). We agree with the

district court that, in this case, “[t]he Commission departed from its guidelines

based on the extent, nature, repetition, and timing of [Mr. Boling]’s assaultive and

threatening behavior which was not adequately taken into consideration by the

calculation of [Mr. Boling]’s guideline range.” Rec. doc. 34, at 10. 2


                                III. CONCLUSION

      For reasons provided above, we AFFIRM the district court’s order denying

Mr. Boling’s § 2241 petition for federal habeas relief.


                                                Entered for the Court,




                                                Robert H. Henry
                                                United States Chief Circuit Judge




      2
        We note that Mr. Boling has filed a motion to submit a supplemental
brief. We conclude that supplemental briefing is not necessary in this case and
therefore DENY the motion.

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