Boling v. Maye
669 F. App'x 944
| 10th Cir. | 2016Background
- Oliver Boling, a federal prisoner sentenced under the pre-Sentencing Guidelines regime, challenged a 2003 U.S. Parole Commission decision that revoked his parole and set a later reconsideration date because he returned quickly to violent activity after release.
- Boling filed a 28 U.S.C. § 2241 habeas petition arguing the Commission violated the Ex Post Facto Clause by applying 2003 parole-guideline standards rather than the regime in effect in 1976 when his original offense occurred.
- In a prior appeal, this court rejected Boling’s Ex Post Facto claim, applying the Supreme Court’s “significant-risk” standard from Garner v. Jones and concluding Boling failed to show a substantial risk of prolonged incarceration under the newer guidelines.
- Boling moved under Fed. R. Civ. P. 60(b) after the Supreme Court decided Peugh v. United States, arguing Peugh changed the law and rendered the court’s prior decision incorrect and void.
- The district court denied Boling’s Rule 60(b) motion; Boling appealed. He also asserted on appeal that the Parole Commission committed fraud on the district court by misstating which guidelines it used.
- The panel denied relief, concluding Peugh did not change the controlling standard, and declined to consider the newly-raised fraud-on-the-court claim because it was not presented below.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether application of 2003 parole guidelines violated the Ex Post Facto Clause | Boling: Peugh shows newer guidelines increased punishment risk, so prior decision is wrong | Parole Commission/Court: Garner’s "significant-risk" test governs; Boling failed to show significant risk | Court: Denied — Peugh reaffirmed Garner; no change in law and Boling showed no significant risk |
| Whether Rule 60(b) relief is warranted based on Peugh | Boling: Peugh is an intervening change of law justifying vacatur | Respondent: Peugh did not alter the controlling standard; no ground for 60(b) relief | Court: Denied — Peugh endorsed existing precedent relied on earlier, so no basis for 60(b) |
| Whether appellate court should address alleged fraud on the district court | Boling: Commission misrepresented which guidelines were applied | Respondent: (procedural) claim was not presented below | Court: Declined to consider — issue forfeited for being raised first on appeal |
Key Cases Cited
- Peugh v. United States, 133 S. Ct. 2072 (2013) (reaffirmed that Ex Post Facto analysis asks whether a change creates a significant risk of increased punishment)
- Garner v. Jones, 529 U.S. 244 (2000) (sets significant-risk standard for Ex Post Facto Clause challenges to parole-guideline changes)
- Boling v. Mundt, [citation="261 Fed. App'x 133"] (10th Cir. 2008) (prior panel decision rejecting Boling’s Ex Post Facto claim under Garner)
- McIntosh v. U.S. Parole Comm’n, 115 F.3d 809 (10th Cir. 1997) (no COA required for § 2241 appeals by federal prisoners)
- Hicks v. Gates Rubber Co., 928 F.2d 966 (10th Cir. 1991) (appellate courts generally do not consider issues raised for the first time on appeal)