     Case: 16-40317      Document: 00514111871        Page: 1     Date Filed: 08/11/2017




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

                                     No. 16-40317
                                                                                  Fif h Circuit

                                                                                FILED
                                                                          August 11, 2017

FREDERICK JAMES FILLINGHAM,                                                Lyle W. Cayce
                                                                                Clerk
              Petitioner – Appellant,

v.

UNITED STATES OF AMERICA,

              Respondent – Appellee.



                   Appeal from the United States District Court
                        for the Eastern District of Texas


Before JOLLY, ELROD, Circuit Judges, and STARRETT, District Judge. *
JENNIFER WALKER ELROD, Circuit Judge:
      Petitioner Frederick James Fillingham, a federal inmate proceeding pro
se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. The
district court denied Fillingham’s petition. Because each of Fillingham’s claims
is not administratively exhausted, lacks merit, or is raised for the first time on
appeal, we AFFIRM the district court’s dismissal of Fillingham’s § 2241
petition. We also DENY Fillingham’s motion for appointment of counsel and
motion for compensation.




      *  The Honorable Keith Starrett, of the United States District Court for the Southern
District of Mississippi, sitting by designation.
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                                        No. 16-40317
                                               I.
       In 1984, in the United States District Court for the District of South
Carolina, Petitioner Frederick James Fillingham pleaded guilty to importing
7,000 pounds of marijuana. Specifically, Fillingham pleaded guilty to two
counts: one count charging him with violating 21 U.S.C. §§ 952(a) and 960 and
another count charging him with violating 21 U.S.C. § 841(a)(1). The district
court imposed a sentence of two years of imprisonment and fifteen years of
special parole 1 for one count and a suspended sentence of five years of
imprisonment, five years of probation, and fifteen years of special parole on the
other count.
       Over the course of the twenty-five years following Fillingham’s original
conviction, he committed a series of other violations which resulted in
additional convictions as well as revocation of his parole. Fillingham began
serving his term of special parole for his original conviction in 1993. However,
his special parole was revoked in 1996 after he pleaded guilty in a California
state court to “Inflict[ing] Corporal Injury on a Spouse or Co-habitant.” Later
in 1996, Fillingham was released on regular parole because the United States
Parole Commission had converted his special parole to regular parole based on
this court’s decision in Artuso v. Hall, 74 F.3d 68 (5th Cir. 1996). The
Commission later vacated its conversion of Fillingham’s special parole to



       1 Special parole is a type of post-release supervision for drug offenders. It was part of
the parole regime abolished by the Sentencing Reform Act of 1984. It differed from regular
parole in three respects: first, special parole follows the term of imprisonment, while a parolee
under regular parole is released before the end of his term of imprisonment; second, special
parole is imposed by the district court judge rather than by the United States Parole
Commission; and third, if the parolee violates the conditions of special parole, he is returned
to prison to serve the entire special parole term and does not receive credit for his time spent
in non-custodial supervision. See Rich v. Maranville, 369 F.3d 83, 85 (2d Cir. 2004). Pursuant
to the Sentencing Reform Act of 1984, special parole was replaced by supervised release. See
Gozlon-Peretz v. United States, 498 U.S. 395, 400 (1991).

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                                 No. 16-40317
regular parole based on the United States Supreme Court’s decision in Johnson
v. United States, 529 U.S. 694 (2000).       In 2000, the Commission issued a
revocation warrant for Fillingham’s arrest based on technical parole violations.
Before the warrant could be executed, however, Fillingham was caught
smuggling 396 kilograms of cocaine into the United Kingdom. Fillingham was
subsequently convicted in the United Kingdom and sentenced to a term of
eighteen years of imprisonment. The Commission’s warrant for Fillingham’s
arrest was finally executed in 2009.
      At a hearing in 2010, the Commission found that Fillingham had
committed technical parole violations, violated the conditions of his parole
regarding drug use, and committed a third violation—a law violation—based
on his United Kingdom conviction. Accordingly, the Commission revoked
Fillingham’s special parole, denied him credit for the time he spent on special
parole, and ordered that he be imprisoned until the expiration of his term of
special parole. The Commission imposed the maximum revocation sentence,
relying heavily on Fillingham’s foreign conviction.
      Fillingham subsequently filed a petition under 28 U.S.C. § 2241 in the
United States District Court for the Eastern District of Texas challenging his
original criminal conviction, his parole revocation, and the Commission and
Bureau of Prison’s calculation of his sentence. Specifically, Fillingham raised
the following claims: (1) counsel was ineffective in his original criminal case
and in his parole revocation proceeding; (2) the Commission violated the Ex
Post Facto Clause by retroactively applying its guidelines and administrative
processes, reimposing special parole after he was released on regular parole,
and denying him credit for time he spent on special parole; (3) the Commission
denied him due process by using his foreign conviction to revoke his special
parole and impose the maximum revocation sentence; (4) his property was
unlawfully seized; and (5) the Commission and the Bureau of Prison’s
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                                       No. 16-40317
calculation denied him credit towards his sentence for foreign jail time. The
district court dismissed Fillingham’s § 2241 petition, and Fillingham filed a
timely notice of appeal.
                                             II.
       The district court dismissed the following claims for failure to exhaust
administrative remedies: (1) ineffective assistance of counsel in the original
criminal case and parole revocation proceeding; and (2) violation of the Ex Post
Facto Clause based on the Commission’s retroactive application of its
guidelines and administrative processes. Fillingham argues the district court
erred in dismissing these claims. We review the dismissal of a claim for failure
to exhaust administrative remedies for abuse of discretion. Gallegos-
Hernandez v. United States, 688 F.3d 190, 194 (5th Cir. 2012). “[A] federal
prisoner filing a § 2241 petition must first pursue all available administrative
remedies.” Id. While exceptions to the exhaustion requirement do exist, they
apply only in “extraordinary circumstances,” and the burden of proof for
demonstrating the futility of administrative review rests with the petitioner.
Fuller v. Rich, 11 F.3d 61, 62 (5th Cir. 1994). Because Fillingham did not
present these challenged claims to the Commission or the Bureau of Prisons
and because Fillingham has not demonstrated that an exception to the
exhaustion requirement applies in this case, the district court did not abuse its
discretion in dismissing these claims for failure to exhaust administrative
remedies. 2 See id.




       2Arguably, Fillingham could not seek administrative review of his claim for ineffective
assistance of counsel in his original criminal case. See Gallegos-Hernandez, 688 F.3d at 194.
However, as we discuss below in Part IV infra, the district court correctly concluded in the
alternative that this claim was not cognizable under § 2241.
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                                 No. 16-40317
                                      III.
      We next address Fillingham’s claims relating to his parole revocation.
We review the district court’s findings of fact for clear error and issues of law
de novo. Dale v. Quarterman, 553 F.3d 876, 879 (5th Cir. 2008). To obtain relief
under § 2241, the prisoner must establish a violation of either the Constitution
or federal law. 28 U.S.C. § 2241(c)(3).
                                          A.
      Fillingham first argues that the Commission was not authorized to
reimpose special parole given our decision in Artuso, which he contends was
unaffected by the Supreme Court’s decision in Johnson. He further argues that
the Commission violated the Ex Post Facto Clause when it reimposed special
parole because he automatically forfeited credit for the three-and-a-half years
he spent on special parole. We disagree.
      In Artuso, we held that the Commission lacked authority under the
former version of 21 U.S.C. § 841(c) to impose a second term of special parole
after it had revoked a first special parole term. 74 F.3d at 71–72. We based our
construction of the former version of § 841(c) on our reasoning in United States
v. Holmes, 954 F.2d 270, 272 (5th Cir. 1992), in which we held that the
sentencing court lacked authority under 18 U.S.C. § 3583(e)(3) to impose a
second term of supervised release after it had revoked a first supervised release
term. Artuso, 74 F.3d at 71. After our decisions in Holmes and Artuso, the
Supreme Court abrogated Holmes by holding that § 3583(e)(3) permits the
reimposition of supervised release. Johnson, 529 U.S. at 698–99 & n.2, 713.
Fillingham and the government dispute whether Johnson undermines this
court’s holding in Artuso.
      There is a post-Johnson circuit split regarding whether the Commission
can reimpose special parole on a defendant. See Edwards v. Cross, 801 F.3d
869, 877–79 (7th Cir. 2015) (holding that the Commission cannot reimpose
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                                 No. 16-40317
special parole); Rich v. Maranville, 369 F.3d 83, 89–91 (2d Cir. 2004) (holding
that the Commission can reimpose special parole). We have not yet considered
how Johnson affects the Commission’s ability to reimpose special parole. The
question now before us is whether our decision in Artuso, holding that the
Commission cannot reimpose a revoked special parole term, remains valid
after Johnson. We conclude that it does not.
      We find the Second Circuit’s reasoning and analysis in Rich persuasive.
In Rich, the Second Circuit held that Johnson abrogated the Second Circuit’s
version of Artuso because it was based on an interpretation of the supervised
release statute that the Supreme Court held was erroneous. Rich, 369 F.3d at
89–90. The Second Circuit held that Johnson compels an interpretation of
§ 841(c) that allows the Commission to “reimpose” special parole after
revocation of a special parole term. Id. The reimposed special parole term may
be the original special parole term less any time spent in custody as a result of
revoked special parole. See Artuso, 74 F.3d at 69; Edwards, 801 F.3d at 872;
Rich, 369 F.3d at 85.
      Analogous to the Second Circuit’s decision, our decision in Artuso was
expressly based on the now-abrogated analysis in Holmes of the term “revoke.”
Artuso, 74 F.3d at 71 (“The reasoning of Holmes controls our decision in this
case. . . . The language of former section 841(c) [governing special parole] is
nearly identical to that of section 3583(e)(3) [governing supervised release]. In
particular, former section 841(c) and section 3583(e)(3) both used the term
revoke in identical contexts to mean cancel or rescind.”) (citation omitted). In
Artuso, we concluded that the word “revoke” meant “cancel” within the context
of revoking a special parole term and that once cancelled, any remaining parole
would be regular parole and not special parole. Id. In Johnson, the Supreme
Court concluded that under § 3583, the term “revoke” meant “recall,” thus
revocation of supervised release under the statutory text did not extinguish,
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                                      No. 16-40317
cancel, or terminate a term of supervised release. Johnson, 529 U.S. at 704.
The Court concluded that once a trial court revokes the supervised release term
and imposes a new term of imprisonment, it could impose a subsequent
supervised release term. Id. at 712. Because we concluded in Holmes that the
language of § 3583(e) was “nearly identical” to the language in former § 841(c),
and because Holmes was abrogated by Johnson, we adopt the Second Circuit’s
analysis in Rich and hold that the Commission may release a prisoner to a
special parole term following revocation. 3
       We also hold that the district court did not err when it determined that
the Commission did not violate the Ex Post Facto Clause in reimposing special
parole. A violation of the Constitution’s Ex Post Facto Clause occurs where
there is an “imposition of a punishment more severe than that assigned by law
when the criminal act occurred.” Hallmark v. Johnson, 118 F.3d 1073, 1077
(5th Cir. 1997). The Commission decided to convert Fillingham’s special parole
term to a term of regular parole based on our decision in Artuso. The
Commission later vacated that decision based on the Supreme Court’s decision
in Johnson. The Commission’s action merely corrected an erroneous policy and
was not a retroactive change in the law. See Cortinas v. United States Parole
Comm’n, 938 F.2d 43, 46 (5th Cir. 1991). Converting Fillingham’s parole to
special parole put his supervision in the same position it would have been at
the time he committed his offense, before Artuso. Therefore, there has been no
change in the law that has been retroactively applied to Fillingham.




       3 We note that to hold otherwise would lead to an absurd result. See Rich, 369 F.3d at
90 (noting that not allowing the Commission to release a prisoner to a special parole term
following revocation would have “the counterintuitive effect of allowing a special parole
violator to attain less stringent regular parole terms, not as a result of good behavior, but
instead as a result of a special parole violation.”).
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                                  No. 16-40317
                                       B.
      Fillingham next argues that the Commission should not have considered
his conviction in the United Kingdom in revoking his parole and imposing the
maximum revocation sentence. He contends that the Commission is not
authorized to revoke parole on the basis of a foreign conviction and that doing
so deprives him of due process. None of the authorities Fillingham cites
address whether the Commission is authorized to revoke parole on the basis of
a foreign conviction. Moreover, the Commission’s internal policy manual
provides that a foreign conviction generally may be treated as conclusive
evidence of a law violation.
      Further, Fillingham’s due process rights were not infringed upon. See
Morrissey v. Brewer, 408 U.S. 471, 480 (1972) (instructing that “revocation of
parole is not part of a criminal prosecution and thus the full panoply of rights
due a defendant in such a proceeding does not apply in parole revocations”).
Our review of a parole revocation decision “is quite circumscribed,” and “[w]e
simply ask whether there is some evidence in the record to support the
Commission’s decision.” Villarreal v. United States Parole Comm’n, 985 F.2d
835, 839 (5th Cir. 1993). To lawfully revoke parole, the government is not
required to have an arrest, a charge, and ultimately a conviction for a new
criminal offense. See id. Instead, the Commission may consider evidence of
dismissed state charges and charges that were subsequently overturned, as
long as the acquittal or dismissal did not, as a matter of law, remove all factual
support from the parole revocation. See id.; see also Else v. Johnson, 104 F.3d
82, 83 (5th Cir. 1997). The United Kingdom conviction was “some evidence” to
support the Commission’s parole revocation decision. The Commission also
considered evidence of violations of the terms of parole aside from the United




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                                       No. 16-40317
Kingdom conviction, which would have supported a revocation of Fillingham’s
parole. Accordingly, we affirm the district court’s dismissal of this claim. 4
                                              C.
       Fillingham also argues that the Commission and Bureau of Prisons
should have applied credit towards his sentence for the nine years he spent in
prison in the United Kingdom. He specifically contends that the Commission
violated the Double Jeopardy Clause by imposing multiple punishments for
the same conduct when it relied on the United Kingdom conviction to revoke
his parole and lengthen his sentence while also denying him foreign jail time
credit. However, the Double Jeopardy Clause does not apply to parole
revocation. United States v. Whitney, 649 F.2d 296, 298 (5th Cir. 1981).
Fillingham also contends that 18 U.S.C. § 3585(b) does not permit the Bureau
of Prisons to deny him credit because this statute was passed after his original
criminal conviction. 5 The predecessor to § 3585(b), former 18 U.S.C. § 3568,
required that a federal prisoner receive “credit toward service of his sentence
for any days spent in custody in connection with the offenses or acts for which


       4 Fillingham also argues that the Commission should not have considered the United
Kingdom conviction because it was the result of a “Majority Jury Verdict” instead of a
unanimous jury verdict. However, the government is not required to have a unanimous
conviction for a new criminal offense in order to justify revocation. See, e.g., Villarreal, 985
F.2d at 839. Fillingham also contends that the United Kingdom conviction is an improper
basis upon which to revoke his parole because the Commission allegedly failed to cooperate
with the United Kingdom authorities and provide the authorities with records allegedly
crucial to his defense. This court, however, is not the proper forum for Fillingham to attack
his United Kingdom conviction.

       5 Section 3585(b) states:
       (b) Credit for prior custody.—A defendant shall be given credit toward the
       service of term of imprisonment for any time he has spent in official detention
       prior to the date the sentence commences—
       (1) as a result of the offense for which the sentence was imposed; or
       (2) as a result of any other charge for which the defendant was arrested after
       the commission of the offense for which the sentence was imposed;
       that has not been credited against another sentence.
18 U.S.C. § 3585(b).
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                                  No. 16-40317
sentence was imposed.” Ballard v. Blackwell, 449 F.2d 868, 869 n.1 (5th Cir.
1971). Fillingham offers no argument as to the former § 3568. Because
Fillingham was imprisoned abroad for his foreign conviction and not for
anything connected “with the offenses or acts for which [his] sentence was
imposed,” he is not entitled to credit for the time he spent imprisoned in the
United Kingdom.
                                       IV.
      We next address Fillingham’s challenge to the dismissal of his claims for
ineffective assistance of counsel and unlawful seizure of his property in his
original criminal case. Fillingham also moves for compensation for his property
that was allegedly taken from him without due process. We affirm the district
court’s dismissal of these claims and deny Fillingham’s motion.
      28 U.S.C. § 2255 is the primary mechanism for collaterally attacking a
federal sentence, and a 28 U.S.C. § 2255 motion must be filed with the
sentencing court. Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000). Fillingham
has filed the motion at issue in this appeal under § 2241. Section 2241 is the
proper procedural vehicle for challenging the manner in which the sentence is
executed, and a § 2241 petition must be filed in the district of incarceration.
See Pack, 218 F.3d at 451. However, § 2255(e), known as the savings clause,
permits a federal prisoner to challenge the legality of his conviction or sentence
in a § 2241 petition when the remedy in § 2255 “is inadequate or ineffective to
test the legality of his detention.” 28 U.S.C. § 2255(e).
      Fillingham was sentenced by the United States District Court for the
District of South Carolina. He has not offered any evidence or argument as to
why he satisfies § 2255(e)’s savings clause. The district court correctly
concluded that these claims are not cognizable under § 2241 and that it lacked
jurisdiction to consider them under § 2255. See Jeffers v. Chandler, 253 F.3d
827, 830 (5th Cir. 2001) (noting that “the burden of coming forward with
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                                 No. 16-40317
evidence to show the inadequacy or ineffectiveness of a motion under § 2255
rests squarely on the petitioner”). Accordingly, we also deny Fillingham’s
motion for compensation for his property that was allegedly taken without due
process.
                                       V.
      For the first time on appeal, Fillingham appears to assert that he has
filed in other cases a complaint under the Freedom of Information Act (FOIA)
and a motion for a reduction of sentence under 18 U.S.C. § 3582(c)(2).
Fillingham argues that the district court should have resolved these actions as
ancillary matters to his § 2241 petition. His FOIA claim, originally filed in the
Eastern District of Texas and transferred by the district court for proper venue
to the District of South Carolina, was denied on appeal by the Fourth Circuit.
Fillingham does not argue, must less demonstrate, that the district court
abused its discretion in declining to permit him to amend the instant action to
add a FOIA claim. See Rourke v. Thompson, 11 F.3d 47, 51 (5th Cir. 1993).
Similarly, Fillingham did not raise his claim regarding his § 3582(c)(2) motion
in the district court. Therefore, we will not consider it now on appeal. See
Wilson v. Roy, 643 F.3d 433, 435 n.1 (5th Cir. 2011) (noting that claims raised
for the first time on appeal will not be considered). Moreover, such a claim is
not cognizable under § 2241. See 28 U.S.C. § 2255(e).
                                      VI.
      For the reasons stated above, we AFFIRM the district court’s dismissal
of Fillingham’s claims. We also DENY Fillingham’s motion for appointment of
counsel and motion for compensation.




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