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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-41029

ALFRED ELLIOTT

Petitioner-Appellant

v.

FRANCISCO J. QUINTANA, Deputy Warden

Respondent-Appellee

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 1:06-CV-405

Before JONES, Chief Judge, and HIGGINBOTHAM and HAYNES, Circuit

Judges.

PER CURIAM:*

Alfred Elliott, federal prisoner # 97965-024, appeals the denial of his

28 U.S.C. § 2241 petition challenging the procedures used to modify his parole.

We affirm.

Elliott argues that the United States Parole Commission (the Commission)

contravened 28 C.F.R. § 2.28(f) by scheduling his case for special reconsideration

without the concurrence of two parole commissioners. He also argues that the

United States Court of Appeals

Fifth Circuit

F I L E D

June 4, 2009

Charles R. Fulbruge III

Clerk
No. 07-41029

2

Commission’s decision to delay his parole date violated 18 U.S.C. § 4203(c) and

28 C.F.R. § 28.13(c) because the Commission failed to obtain the concurrence of

two hearing examiners. These arguments were raised neither in Elliott’s appeal

before the National Appeals Board nor in his § 2241 petition; they were instead

raised for the first time in his summary judgment motion and were not

addressed by the district court. Our authorities are split on whether the district

court had to construe the inclusion of new arguments in the summary judgment

motion as a motion to amend the pleadings. Compare Cutrera v. Louisiana State

Univ., 429 F.3d 108,113 (5th Cir. 2005), with Ganther v. Ingle, 75 F.3d 207,

211–12 (5th Cir. 1996). Even assuming that the district court should have

treated Elliot’s summary judgment motion as embodying a motion to amend, and

that the court should have granted it, the “motion” may be denied where

granting the amendment would be futile. Leffall v. Dallas Independent School

Dist., 28 F.3d 521, 524 (5th Cir. 1994); see also Addington v. Farmer’s Elevator

Mut. Ins. Co., 650 F.2d 663, 667 (5th Cir. 1981) (“Clearly, if the complaint as

amended would still be subject to dismissal, no abuse of discretion occurs when

amendment is denied.”). Because Elliott did not raise these arguments before

the National Appeals Board, he failed to exhaust his administrative remedies,

Fuller v. Rich, 11 F.3d 61 (5th Cir. 1994), and the district did not abuse its

discretion in implicitly denying Elliott’s motion to amend his petition.

Elliott also argues that he did not receive timely notice of his special

reconsideration hearing. However, the record discloses, and Elliott has shown,

no prejudice arising therefrom. He has accordingly not “show[n] that the action

of the [B]oard was so unlawful as to make his custody in violation of the laws of

the United States” and is not entitled to habeas relief. Brown v. Lundgren,

528 F.2d 1050, 1054 (5th Cir. 1976). Elliott’s contention that he was entitled to

prehearing disclosure of Kathleen Pinner’s memorandum recommending that his

case be reopened based on new information is baseless because that

memorandum only provided the basis for authorizing the reconsideration
No. 07-41029

3

hearing but was not used by the Commission in making its parole determination.

See 18 U.S.C. § 4208(b); 28 C.F.R. § 2.55(g). Because Elliott raises for the first

time on appeal the issue of his entitlement to a representative at his special

reconsideration hearing, we do not consider that claim. See Page v. United

States Parole Comm’n, 651 F.2d 1083, 1087 (5th Cir. 1981). Elliott further

argues that he received insufficient notification of the reasons supporting the

decision to retard his parole date. The record supports a determination that his

notice was adequate. See Shahid v. Crawford, 599 F.2d 666, 668, 671–72 (5th

Cir. 1979). Regardless, he has shown no prejudice and indeed does not challenge

the substance of the ruling.

Finally, we reject Elliott’s contention that the information contained in the

United States Department of Justice letter was not “new” adverse information

for purposes of § 2.28(f). The information contained in the letter was not

considered in making his initial parole determination and could serve as a basis

for reopening his proceedings. Cf. Schiselman v. United States Parole Comm’n,

858 F.2d 1232, 1238-39 (7th Cir. 1988) (holding that information in existence but

not considered at an initial parole hearing may nevertheless may be used at a

special reconsideration hearing as “new” information to retard an inmate’s

parole date); Fardella v. Garrison, 698 F.2d 208, 211 (4th Cir. 1982) (same);

Iuteri v. Nardoza, 662 F.2d 159, 161 (2d Cir. 1981) (holding that while the

substance of the sentencing hearing was presented to the Commission at the

parole hearing, the sentencing transcript and the summary report prepared by

the prosecutor had not been considered by the Commission and, therefore, was

deemed new evidence); McClanahan v. Mulcrome, 636 F.2d 1190, 1191 (10th Cir.

1980) (holding that “[t]he discovery of an error in the severity rating and the

disparity in parole decisions as to codefendants can be considered as ‘new’ when

the elements are brought together before the Commissioner”).

AFFIRMED; MOTION TO EXPEDITE APPEAL DENIED.