Banks v. United States of America, 5:09-cv-03086

Background

James Banks, convicted by general court-martial in 2003 (ten years confinement, dishonorable discharge), filed pro se § 2241 habeas challenging parole/MSR matters after his minimum release date in 2009.
In 2008 the Air Force Clemency & Parole Board (AFC&PB) approved traditional parole but Banks declined; he was told MSR would apply at his minimum release date if traditional parole was not taken.
Mandatory Supervised Release (MSR) is an involuntary Department of Defense parole program that releases prisoners to community supervision at their minimum release date under conditions set by the service parole boards.
The Tenth Circuit vacated the district court’s 2009 judgment and remanded, identifying three issues on appeal: (1) MSR as an unannounced new sentence (Due Process/Double Jeopardy), (2) MSR’s effect on good-conduct time/abatement, and (3) whether parole conditions were imposed in violation of procedural due process and whether that claim is cognizable in habeas or only in Bivens.
On remand the district court held that a challenge to release on MSR and its conditions can be cognizable under § 2241 because release on MSR is a significant change in the execution of the sentence, but Banks failed to exhaust available military remedies with respect to the procedural-due-process claim.
Because Banks did not pursue available Service Clemency and Parole Board reconsideration (he alleged futility), the court dismissed the entire petition without prejudice for failure to exhaust.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether placement on MSR violates Due Process/Double Jeopardy by imposing a new unannounced sentence	Banks: MSR imposes a new, additional sentence element not announced at court-martial	Gov: MSR is a lawful execution mechanism under DoD authority and parole practice, not a new criminal sentence	Court did not reach the merits on remand; petition dismissed without prejudice for failure to exhaust military remedies
Whether MSR deprives Banks of good-conduct time/abatement without due process	Banks: MSR operates to remove earned credits/abatement in violation of due process	Gov: MSR administration and credits are matters of sentence execution and subject to military procedures; exhaustion required	Court did not reach merits; dismissed without prejudice for failure to exhaust
Whether the procedural-due-process challenge to parole conditions is cognizable in habeas and whether Banks exhausted military remedies	Banks: Claim may be brought in habeas and he exhausted or relief is futile; parole conditions denied procedural due process	Gov: If the claim is cognizable it is subject to exhaustion through service clemency/parole procedures; Banks did not pursue available remedies	Court: Claim is cognizable in § 2241 (challenge to release/conditions), but Banks failed to exhaust available military remedies; entire petition dismissed without prejudice

Key Cases Cited

Huschak v. Gray, 642 F. Supp. 2d 1268 (D. Kan. 2009) (recognizing MSR as DoD parole system and describing supervised-release mechanics)
Preiser v. Rodriguez, 411 U.S. 475 (1973) (habeas corpus challenges the legality of custody and seeks release)
Nelson v. Campbell, 541 U.S. 637 (2004) (distinguishing conditions-of-confinement claims from core habeas challenges)
Davis v. Roberts, 425 F.3d 830 (10th Cir. 2005) (§ 2241 may reach claims involving execution of a federal sentence)
McIntosh v. United States Parole Comm’n, 115 F.3d 809 (10th Cir. 1997) (habeas review appropriate for parole-related execution claims)
United States v. Furman, 112 F.3d 435 (10th Cir. 1997) (challenges to good-time credit and parole procedures cognizable under § 2241)
Jiminian v. Nash, 245 F.3d 144 (2d Cir. 2001) (§ 2241 includes parole administration challenges)
Palma-Salazar v. Davis, 677 F.3d 1031 (10th Cir. 2012) (discussing when parole-like changes constitute cognizable § 2241 claims)
Woodall v. Federal Bureau of Prisons, 432 F.3d 235 (3d Cir. 2005) (parole/community-release distinction relevant to habeas vs. civil actions)
Williams v. Wisconsin, 336 F.3d 576 (7th Cir. 2003) (parole conditions define the perimeter of confinement; release from parole restrictions is properly sought in habeas)
United States v. Pena, 61 M.J. 776 (A.F. Ct. Crim. App.) (military appellate review may assess MSR’s general application but lacks authority to supervise MSR administration in individual cases)