Eric Bertram v. Jody Upton , 476 F. App'x 781 ( 2012 )

Case: 11-41096 Document: 00511844030 Page: 1 Date Filed: 05/03/2012
IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT Fifth Circuit
FILED
May 3, 2012
No. 11-41096
Summary Calendar Lyle W. Cayce
Clerk
ERIC NELSON BERTRAM,
Petitioner-Appellant
v.
JODY R. UPTON, Warden,
Respondent-Appellee
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:08-CV-222
Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
Eric Nelson Bertram appeals the dismissal of his 28 U.S.C. § 2241application seeking relief from his 45-year aggregated prison sentence on his
convictions for postal fraud, possession of an unregistered firearm, illegal
manufacture of a firearm, and commission of an offense while on release. We
affirm.
Bertram was convicted March 1987, before the Sentencing Reform Act
abolished parole. He became eligible for parole in September 1996. He was first
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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No. 11-41096
released on parole in December 1998, but the United States Parole Commission
(Commission) revoked his parole in February 2000 and ordered that he be
released again after the service of 10 more months in custody. Bertram was
again released into the community in December 2000. Three years later, the
Commission considered him for early parole termination under 18 U.S.C. § 4211and 28 C.F.R. § 2.43 but determined that continued supervision was necessary.
The Commission conducted additional reviews in 2004 and 2005, both times
finding that continued supervision of Bertram was warranted.
In September 2006, Bertram was charged with illegally possessing a
firearm and possessing an altered firearm, acts that would constitute violations
of his parole terms. In January 2007, a probation officer determined that there
was probable cause to proceed with revocation proceedings against Bertram. On
the officer’s recommendation, the Commission provided Bertram with
documentation that would be used at his revocation hearing. In April 2007, the
Commission conducted a combined parole revocation hearing and five-year early
termination hearing. See 18 U.S.C. § 4211(c)(1). Bertram appeared at the
hearing but left after becoming belligerent and profane and twice telling the
officer to shut up. On May 21, 2007, the Commission ordered that Bertram
remain under supervision, revoked his parole, and continued his reconsideration
hearing to April 2022, which was above his reparole guidelines.
Bertram posits these matters for review: first, whether the Commission
was required to abide by its regulations; and second, whether the district court
was required to answer each and every issue that he raised. Because Bertram
fails to brief the second issue, however, we deem it abandoned. See Brinkmann
v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
Additionally, Bertram asserts that he was not given sufficient time in which to
retain counsel for the revocation hearing and states that he did not waive his
right to an attorney. In reviewing the denial of relief on Bertram’s surviving
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No. 11-41096
claims, we review the “ district court’s findings of fact for clear error and issues
of law de novo.” Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001).
A federal prisoner’s challenge to the Commission’s actions or omissions
must establish a violation of either the Constitution or federal law.
See § 2241(c)(3). The revocation of parole must be accompanied by procedural
due process. Brown v. Lundgren, 528 F.2d 1050, 1052 (5th Cir. 1976). The
process due consists of notice, a hearing at which the parolee has a chance to be
heard and to show that he did not violate the terms of his parole, a neutral
hearing body, and a written statement of factfindings. Morrissey v. Brewer, 408
U.S. 471, 487-88 (1972). The record shows that Bertram received adequate
notice, was afforded a hearing before a neutral adjudicator but spurned it, and
received written factfindings. As for Bertram’s suggestion that he had a
constitutional right to counsel, it does not survive scrutiny under Gagnon v.
Scarpelli, 411 U.S. 778, 790-91 (1973).
We conclude also that the Commission committed no actionable violation
of federal statutory law. That the Commission did not hold a timely five-year
termination hearing does not mean, as Bertram would have it, that his parole
had already terminated when he committed the acts that the Commission
deemed to be parole violations. See § 4211(c)(1); Penix v. U.S. Parole Comm’n,
979 F.2d 386, 388-90 (5th Cir. 1992). And even assuming that § 2241 might
otherwise be implicated by the Commission’s failure to follow Commission
regulations, see United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 265-
66 & n.7 (1954), Bertram fails to show that he suffered substantial prejudice as
a result. See American Farm Lines v. Black Ball Freight Serv., 397 U.S. 532, 539
(1970). Bertram does not deny that he violated his parole conditions or that he
was convicted in 2008 of possessing firearms subsequent to a felony conviction.
AFFIRMED.
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