Richard Thompson v. MICHELLE R. RICCI, Administrator

CLD-136 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-4561
___________
RICHARD THOMPSON,
Appellant
v.
MICHELLE R. RICCI,
Administrator
__________________________
Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 07-cv-02694)
District Judge: Honorable Joel A. Pisano
__________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
March 19, 2009
Before: RENDELL, HARDIMAN and STAPLETON, Circuit Judges
(Filed April 27, 2009)
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OPINION OF THE COURT
_________
PER CURIAM
Richard Thompson appeals from an order of the District Court denying his motion
for reconsideration under Fed. R. Civ. P. 59(e). For the reasons that follow, we will

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18 U.S.C. § 5005 et seq. (1976) (repealed 1984).1
Thompson alleged that the Commission improperly characterized his YCA conviction2
as one for “rape” instead of “attempted rape.”
Instead, the District Court found that Thompson was denied parole because of his3
“more recent convictions of murder of an inmate, escape from a federal facility, and
stabbing a prison guard seventeen times.”
2
affirm.
Thompson is a contract federal prisoner currently incarcerated in New Jersey State
Prison. On September 13, 1974, he was sentenced in the Eastern District of Virginia to
an eight-year Youth Corrections Act (“YCA”) sentence for the crime of assault with1
intent to commit rape. Then, on June 27, 1977, he was sentenced in the Central District
of California to life imprisonment for the murder of a fellow inmate. Thompson was
released from the YCA sentence in 1980, and at that time began serving his consecutive
life sentence.
Thompson was first denied parole in 1992. On July 22, 2004, he filed a habeas
corpus petition pursuant to 28 U.S.C. § 2241 in the Western District of Michigan.
Therein, he sought to correct allegedly erroneous information in his 1974 pre-sentence
report (“PSR”). The District Court denied Thompson’s petition. Concluding that2
“section 2241[] is not available to mandate the correction of idle facts before the Parole
Commission,” the District Court reasoned that any inaccuracies in the PSR related to the
attempted rape conviction were irrelevant to the denial of parole. The Sixth Circuit3

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affirmed.
Thompson’s second parole denial occurred in September of 2006. Following that
decision, the United States Parole Commission (“the Commission”) adopted the
recommendation of the hearing examiner and mandated participation in a “Special Sex
Offender Aftercare Treatment” program as a precondition for Thompson’s parole, based
on the YCA conviction. Thompson appealed the Commission’s decision, and the
National Appeals Board affirmed. He then filed the instant habeas corpus petition
pursuant to § 2241.
Thompson set forth two claims in his amended petition: 1) that the inaccurate
information in the PSR impermissibly factored into his parole denial, and thus led to the
deprivation of his Fifth Amendment rights; and 2) that the United States Parole
Commission violated the Ex Post Facto Clause by attaching participation in a sex
offender treatment program as a condition of any future parole, based on his 1974 YCA
conviction for assault with intent to commit rape. The District Court denied the petition,
and denied Thompson’s subsequent motion for reconsideration.
Turning to the instant appeal, we agree with the District Court that Thompson
could have, and therefore should have, raised his Fifth Amendment claim related to the
allegedly erroneous information in his 1974 PSR in his first § 2241 petition. See Queen
v. Miner, 530 F.3d 253, 255 (3d Cir. 2008) (“a petitioner may not raise new claims that
could have been resolved in a previous action”). But even if the claim’s factual predicate

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It is also unclear as to whether the claim has been exhausted. Thompson of course4
has the burden of demonstrating exhaustion of his administrative remedies before
proceeding under § 2241. See Coady v. Vaughn, 251 F.3d 480, 488 (3d Cir. 2001);
Moscato v. Federal Bureau of Prisons, 98 F.3d 757, 761 (3d Cir. 1996). Notwithstanding
a failure to exhaust, however, we may deny claims in a § 2241 petition if they are without
merit. See Montez v. McKinna, 208 F.3d 862, 866 (10th Cir. 2000); Maddox v. Elzie,
238 F.3d 437, 442 (D.C. Cir. 2001); cf. 28 U.S.C. § 2254(b)(2).
4
did not arise until his second parole denial, as Thompson suggests, his claim would still
fail. The Commission’s decision makes clear that he was denied parole because of his
myriad disciplinary infractions while incarcerated, including an attempted escape, murder
of an inmate, assault on a corrections officer, and possession of a knife. (Hab. Pet. at Ex.
D, pgs. 1-2.). Conversely, the decision does not indicate that he was denied parole
because of the YCA conviction, regardless of how its underlying conduct was
categorized.
We also find that Thompson has failed to make out a viable Ex Post Facto claim.4
“A new law or policy violates the Ex Post Facto clause (1) when it is retrospective, i.e.,
when it ‘appl[ies] to events occurring before its enactment,’ and (2) when it
‘disadvantage[s] the offender affected by it.’” Mickens-Thomas v. Vaughn, 321 F.3d 374,
384 (3d Cir. 2003) (quoting Weaver v. Graham, 450 U.S. 24, 29 (1981)). We need not
decide whether attachment of a “Special Sex Offender Aftercare Treatment” condition to
parolees constitutes a “new law or policy” of the Commission. Even if it did,
Thompson’s allegations fall short of demonstrating that the law or policy has actually
disadvantaged him. See generally id. (Ex Post Facto violation where inmate was denied

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parole three times based on retroactive application of new parole statute).
There being no substantial question presented by Thompson’s appeal, we will
summarily affirm the District Court’s order. See LAR 27.4; I.O.P. 10.6.

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