Kellis Jackson v. Carol Holinka , 438 F. App'x 498 ( 2011 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 17, 2011*
Decided August 17, 2011
Before
WILLIAM J. BAUER, Circuit Judge
DIANE S. SYKES, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 11-1747
KELLIS DJON JACKSON, Appeal from the United States District
Petitioner-Appellant, Court for the Western District of Wisconsin.
v. No. 10-cv-193-wmc
CAROL HOLINKA, William M. Conley,
Respondent-Appellee. Judge.
ORDER
Kellis Jackson, a federal inmate, appeals from the denial of his petition for a writ of
habeas corpus, 28 U.S.C. § 2241, contending that the United States Parole Commission
incorrectly determined his parole eligibility and thereby unlawfully extended his
incarceration. Finding that the Commission properly applied federal regulations, we affirm.
*
After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and record. See FED. R. APP. P.
34(a)(2)(c).
No. 11-1747 Page 2
Jackson has been incarcerated since 1987 for committing two kidnappings. One
kidnapping occurred in Arlington, Virginia, and the other occurred within the D.C. city
limits. For the Arlington kidnapping, he was sentenced to 35 years’ imprisonment under the
United States Code for kidnapping with intent to ransom, 18 U.S.C. § 1201(a)(1), and
obstruction of justice, 18 U.S.C. § 1512. For the separate kidnapping in the District of
Columbia, he received a consecutive sentence of 45 years under the D.C. Code. D.C. CODE
§ 22-2101 (1981).
The parole process for Jackson occurred in two stages: first, for the federal sentence
and second, for the D.C. sentence. In June 2000, the Commission held its initial hearing to
calculate the number of months he must serve for the U.S. Code sentence, his “federal time.”
See 28 C.F.R. § 2.65. Using the federal guidelines, the Commission calculated a parole
guidelines range of at least 276 months(with no upper bound). See id. § 2.20. The
Commission concluded that Jackson’s federal time should be 280 months, the statutory
maximum. See id. § 2.65(d) (federal time for parole eligibility may not exceed two-thirds of
the federal sentence).
In January 2010, the month before Jackson’s federal time expired, the Commission
held a hearing to determine whether Jackson was suitable for parole from the D.C. portion
of his sentence based on the District’s parole regulations, D.C. MUN. REGS. tit. 28, § 204
(1987). See also 28 C.F.R. § 2.65(e). The Commission determined, based on Jackson’s age,
criminal history, and prior commitments, that he was in the “high risk” category of inmates.
Applying the D.C. guidelines further, the Commission considered that Jackson committed a
violent crime, displayed negative institutional behavior, but showed some program
achievement. Based on these factors, the Commission denied parole. See D.C. MUN. REGS. tit.
28, § 204.19-20 (1987).
Jackson then filed his petition for writ of habeas corpus. His arguments have varied
at different stages of the litigation, but the one claim that he has preserved for this appeal is
that the Commission impermissibly used 28 C.F.R. § 2.65 to postpone the hearing on, and
determine his eligibility for, parole under the D.C. Code. Section 2.65 governs parole release
for prisoners, like Jackson, serving aggregated sentences under both the United States and
District of Columbia Codes. He argues that § 2.65 should not apply to him because, he says,
it was declared invalid in Thomas v. Brennan, 961 F.2d 612 (7th Cir. 1992). According to
Jackson, the Commission should have decided his parole under a different regulation, 28
C.F.R. § 2.12(a), which he believes would have required a hearing within ten years of his
imprisonment.
The district court denied the petition. It first rejected claims that Jackson does not
renew here, such as his contention that the Commission violated the Ex Post Facto Clause
No. 11-1747 Page 3
when it determined Jackson’s parole eligibility. The court also concluded that the
Commission correctly scheduled the date of Jackson’s D.C. parole hearing based on 28
C.F.R. § 2.65. It observed that the regulation that Jackson wanted the Commission to use,
§ 2.12(a), by its own terms applies only to prisoners who are serving purely federal
sentences. Finally, the court rejected Jackson’s reading of Thomas; that decision, the court
said, only invalidated portions of the predecessor to § 2.65, previously codified at § 2.66,
and those provisions were not applied to Jackson because they have been repealed.
Jackson then moved to alter the judgment, FED. R. CIV. P. 59(e). As it relates to this
appeal, the motion maintained that § 2.65 is invalid under Thomas. The court denied the
motion, observing that Jackson offered no good reason to adopt his reading of Thomas.
On appeal Jackson argues that the district court erred when it decided that 28 C.F.R.
§ 2.65 is valid in light of our decision in Thomas. Jackson interprets Thomas to hold that
federal regulations governing when an inmate has completed a federal sentence may not
affect the scheduling of a parole hearing on the portion of a sentence under the D.C. Code.
But in Thomas we invalidated only a regulation that required the Commission to apply a
federal standard, 28 C.F.R. § 2.20, when deciding if a prisoner is eligible for parole on the
D.C. portion of a mixed sentence. 961 F.2d at 618. This violated the principle that D.C.
parole guidelines should be applied to a prisoner’s sentence under the D.C. Code, see 28
C.F.R. § 2.65(b); Thomas, 961 F.2d at 618-19. In Jackson’s case, § 2.65(e) did delay his D.C.
parole hearing until after the expiration of his federal time, see 28 C.F.R. §2.65(e). But we
specifically approved this situation in Thomas, 961 F.2d at 618, holding that postponing the
D.C. parole hearing until the expiration of federal time is permitted in order to give due
regard to the federal scheme. Id. Accordingly, Jackson’s attack on § 2.65(e) fails.
Jackson next argues that, even if § 2.65 is valid under Thomas, his parole hearing on
his D.C. sentence should have occurred in 1997, not 2010. He cites a 1994 Policy Guideline of
the Federal Bureau of Prisons, which requires that the parole eligibility date on a mixed
sentence generally not exceed ten years from the date of confinement. See also Chatman-Bey
v. Meese, 797 F.2d 987 (D.C. Cir. 1986). But when an inmate’s federal time extends beyond
the parole eligibility date, the Commission is not required to hold a hearing on the D.C.
portion of a mixed sentence until four months prior to the expiration of federal time. 28
C.F.R. § 2.65(e); Thomas, 961 F.2d at 618. Here, Jackson’s federal time extended until June
2010, so his January 2010 hearing on the D.C. portion of his sentence was not untimely.
Jackson lastly argues several points that he never raised before this appeal. He
argues for instance, that his parole guideline range of at least 276 months was excessive; that
calculating parole separately for the sentences under the United States and District of
Columbia Codes results in an unfair “double-counting” of his criminal history; and that he
No. 11-1747 Page 4
has a constitutional right under the Due Process Clause to parole and release from custody.
But none of these arguments was raised or developed before the district court, and we will
not consider them for the first time on appeal. County of McHenry v. Insurance Company of the
West, 438 F.3d 813, 819-820 (7th Cir. 2006). Insofar as Jackson did allude to these arguments
in the district court, he did so only in his motion to alter the judgment under Rule 59(e),
which was too late in the proceedings to be preserved. United States v. Resnick, 594 F.3d 562,
568 (7th Cir. 2010); Bordelon v. Chicago School Reform Bd. of Trustees, 233 F.3d 524, 529 (7th Cir.
2000).
The judgment of the district court is AFFIRMED.