Revised August 11, 2017

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-40317

FREDERICK JAMES FILLINGHAM, 

 Petitioner – Appellant, 

v. 

UNITED STATES OF AMERICA, 

 Respondent – Appellee. 

Appeal from the United States District Court 

for the Eastern District of Texas 

Before JOLLY, ELROD, Circuit Judges, and STARRETT, District Judge.*

JENNIFER WALKER ELROD, Circuit Judge:

Petitioner Frederick James Fillingham, a federal inmate proceeding pro 

se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. The 

district court denied Fillingham’s petition. Because each of Fillingham’s claims 

is not administratively exhausted, lacks merit, or is raised for the first time on 

appeal, we AFFIRM the district court’s dismissal of Fillingham’s § 2241 

petition. We also DENY Fillingham’s motion for appointment of counsel and 

motion for compensation. 

 

* The Honorable Keith Starrett, of the United States District Court for the Southern 

District of Mississippi, sitting by designation.

United States Court of Appeals

Fif h Circuit

FILED

August 11, 2017

Lyle W. Cayce

Clerk

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I. 

In 1984, in the United States District Court for the District of South 

Carolina, Petitioner Frederick James Fillingham pleaded guilty to importing 

7,000 pounds of marijuana. Specifically, Fillingham pleaded guilty to two 

counts: one count charging him with violating 21 U.S.C. §§ 952(a) and 960 and 

another count charging him with violating 21 U.S.C. § 841(a)(1). The district 

court imposed a sentence of two years of imprisonment and fifteen years of 

special parole1 for one count and a suspended sentence of five years of 

imprisonment, five years of probation, and fifteen years of special parole on the 

other count. 

Over the course of the twenty-five years following Fillingham’s original 

conviction, he committed a series of other violations which resulted in 

additional convictions as well as revocation of his parole. Fillingham began 

serving his term of special parole for his original conviction in 1993. However, 

his special parole was revoked in 1996 after he pleaded guilty in a California 

state court to “Inflict[ing] Corporal Injury on a Spouse or Co-habitant.” Later 

in 1996, Fillingham was released on regular parole because the United States 

Parole Commission had converted his special parole to regular parole based on 

this court’s decision in Artuso v. Hall, 74 F.3d 68 (5th Cir. 1996). The 

Commission later vacated its conversion of Fillingham’s special parole to 

 

1 Special parole is a type of post-release supervision for drug offenders. It was part of 

the parole regime abolished by the Sentencing Reform Act of 1984. It differed from regular 

parole in three respects: first, special parole follows the term of imprisonment, while a parolee 

under regular parole is released before the end of his term of imprisonment; second, special

parole is imposed by the district court judge rather than by the United States Parole 

Commission; and third, if the parolee violates the conditions of special parole, he is returned 

to prison to serve the entire special parole term and does not receive credit for his time spent 

in non-custodial supervision. See Rich v. Maranville, 369 F.3d 83, 85 (2d Cir. 2004). Pursuant

to the Sentencing Reform Act of 1984, special parole was replaced by supervised release. See 

Gozlon-Peretz v. United States, 498 U.S. 395, 400 (1991). 

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regular parole based on the United States Supreme Court’s decision in Johnson 

v. United States, 529 U.S. 694 (2000). In 2000, the Commission issued a 

revocation warrant for Fillingham’s arrest based on technical parole violations. 

Before the warrant could be executed, however, Fillingham was caught 

smuggling 396 kilograms of cocaine into the United Kingdom. Fillingham was 

subsequently convicted in the United Kingdom and sentenced to a term of 

eighteen years of imprisonment. The Commission’s warrant for Fillingham’s 

arrest was finally executed in 2009. 

At a hearing in 2010, the Commission found that Fillingham had 

committed technical parole violations, violated the conditions of his parole 

regarding drug use, and committed a third violation—a law violation—based 

on his United Kingdom conviction. Accordingly, the Commission revoked 

Fillingham’s special parole, denied him credit for the time he spent on special 

parole, and ordered that he be imprisoned until the expiration of his term of 

special parole. The Commission imposed the maximum revocation sentence, 

relying heavily on Fillingham’s foreign conviction. 

Fillingham subsequently filed a petition under 28 U.S.C. § 2241 in the 

United States District Court for the Eastern District of Texas challenging his 

original criminal conviction, his parole revocation, and the Commission and 

Bureau of Prison’s calculation of his sentence. Specifically, Fillingham raised 

the following claims: (1) counsel was ineffective in his original criminal case

and in his parole revocation proceeding; (2) the Commission violated the Ex 

Post Facto Clause by retroactively applying its guidelines and administrative 

processes, reimposing special parole after he was released on regular parole, 

and denying him credit for time he spent on special parole; (3) the Commission 

denied him due process by using his foreign conviction to revoke his special 

parole and impose the maximum revocation sentence; (4) his property was 

unlawfully seized; and (5) the Commission and the Bureau of Prison’s 

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calculation denied him credit towards his sentence for foreign jail time. The 

district court dismissed Fillingham’s § 2241 petition, and Fillingham filed a 

timely notice of appeal. 

II. 

The district court dismissed the following claims for failure to exhaust 

administrative remedies: (1) ineffective assistance of counsel in the original 

criminal case and parole revocation proceeding; and (2) violation of the Ex Post 

Facto Clause based on the Commission’s retroactive application of its 

guidelines and administrative processes. Fillingham argues the district court 

erred in dismissing these claims. We review the dismissal of a claim for failure 

to exhaust administrative remedies for abuse of discretion. GallegosHernandez v. United States, 688 F.3d 190, 194 (5th Cir. 2012). “[A] federal 

prisoner filing a § 2241 petition must first pursue all available administrative 

remedies.” Id. While exceptions to the exhaustion requirement do exist, they 

apply only in “extraordinary circumstances,” and the burden of proof for 

demonstrating the futility of administrative review rests with the petitioner. 

Fuller v. Rich, 11 F.3d 61, 62 (5th Cir. 1994). Because Fillingham did not 

present these challenged claims to the Commission or the Bureau of Prisons 

and because Fillingham has not demonstrated that an exception to the 

exhaustion requirement applies in this case, the district court did not abuse its 

discretion in dismissing these claims for failure to exhaust administrative 

remedies.2 See id. 

 

2 Arguably, Fillingham could not seek administrative review of his claim for ineffective 

assistance of counsel in his original criminal case. See Gallegos-Hernandez, 688 F.3d at 194. 

However, as we discuss below in Part IV infra, the district court correctly concluded in the 

alternative that this claim was not cognizable under § 2241. 

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III. 

We next address Fillingham’s claims relating to his parole revocation. 

We review the district court’s findings of fact for clear error and issues of law 

de novo. Dale v. Quarterman, 553 F.3d 876, 879 (5th Cir. 2008). To obtain relief 

under § 2241, the prisoner must establish a violation of either the Constitution 

or federal law. 28 U.S.C. § 2241(c)(3). 

A.

Fillingham first argues that the Commission was not authorized to 

reimpose special parole given our decision in Artuso, which he contends was 

unaffected by the Supreme Court’s decision in Johnson. He further argues that 

the Commission violated the Ex Post Facto Clause when it reimposed special 

parole because he automatically forfeited credit for the three-and-a-half years 

he spent on special parole. We disagree. 

In Artuso, we held that the Commission lacked authority under the 

former version of 21 U.S.C. § 841(c) to impose a second term of special parole 

after it had revoked a first special parole term. 74 F.3d at 71–72. We based our 

construction of the former version of § 841(c) on our reasoning in United States 

v. Holmes, 954 F.2d 270, 272 (5th Cir. 1992), in which we held that the 

sentencing court lacked authority under 18 U.S.C. § 3583(e)(3) to impose a 

second term of supervised release after it had revoked a first supervised release 

term. Artuso, 74 F.3d at 71. After our decisions in Holmes and Artuso, the 

Supreme Court abrogated Holmes by holding that § 3583(e)(3) permits the 

reimposition of supervised release. Johnson, 529 U.S. at 698–99 & n.2, 713. 

Fillingham and the government dispute whether Johnson undermines this 

court’s holding in Artuso. 

There is a post-Johnson circuit split regarding whether the Commission 

can reimpose special parole on a defendant. See Edwards v. Cross, 801 F.3d 

869, 877–79 (7th Cir. 2015) (holding that the Commission cannot reimpose 

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special parole); Rich v. Maranville, 369 F.3d 83, 89–91 (2d Cir. 2004) (holding 

that the Commission can reimpose special parole). We have not yet considered 

how Johnson affects the Commission’s ability to reimpose special parole. The 

question now before us is whether our decision in Artuso, holding that the 

Commission cannot reimpose a revoked special parole term, remains valid

after Johnson. We conclude that it does not. 

We find the Second Circuit’s reasoning and analysis in Rich persuasive. 

In Rich, the Second Circuit held that Johnson abrogated the Second Circuit’s 

version of Artuso because it was based on an interpretation of the supervised 

release statute that the Supreme Court held was erroneous. Rich, 369 F.3d at 

89–90. The Second Circuit held that Johnson compels an interpretation of 

§ 841(c) that allows the Commission to “reimpose” special parole after 

revocation of a special parole term. Id. The reimposed special parole term may 

be the original special parole term less any time spent in custody as a result of 

revoked special parole. See Artuso, 74 F.3d at 69; Edwards, 801 F.3d at 872; 

Rich, 369 F.3d at 85. 

Analogous to the Second Circuit’s decision, our decision in Artuso was 

expressly based on the now-abrogated analysis in Holmes of the term “revoke.” 

Artuso, 74 F.3d at 71 (“The reasoning of Holmes controls our decision in this 

case. . . . The language of former section 841(c) [governing special parole] is 

nearly identical to that of section 3583(e)(3) [governing supervised release]. In 

particular, former section 841(c) and section 3583(e)(3) both used the term 

revoke in identical contexts to mean cancel or rescind.”) (citation omitted). In 

Artuso, we concluded that the word “revoke” meant “cancel” within the context 

of revoking a special parole term and that once cancelled, any remaining parole 

would be regular parole and not special parole. Id. In Johnson, the Supreme 

Court concluded that under § 3583, the term “revoke” meant “recall,” thus 

revocation of supervised release under the statutory text did not extinguish, 

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cancel, or terminate a term of supervised release. Johnson, 529 U.S. at 704. 

The Court concluded that once a trial court revokes the supervised release term 

and imposes a new term of imprisonment, it could impose a subsequent 

supervised release term. Id. at 712. Because we concluded in Holmes that the 

language of § 3583(e) was “nearly identical” to the language in former § 841(c), 

and because Holmes was abrogated by Johnson, we adopt the Second Circuit’s 

analysis in Rich and hold that the Commission may release a prisoner to a 

special parole term following revocation.3 

We also hold that the district court did not err when it determined that 

the Commission did not violate the Ex Post Facto Clause in reimposing special 

parole. A violation of the Constitution’s Ex Post Facto Clause occurs where 

there is an “imposition of a punishment more severe than that assigned by law 

when the criminal act occurred.” Hallmark v. Johnson, 118 F.3d 1073, 1077 

(5th Cir. 1997). The Commission decided to convert Fillingham’s special parole 

term to a term of regular parole based on our decision in Artuso. The 

Commission later vacated that decision based on the Supreme Court’s decision 

in Johnson. The Commission’s action merely corrected an erroneous policy and 

was not a retroactive change in the law. See Cortinas v. United States Parole 

Comm’n, 938 F.2d 43, 46 (5th Cir. 1991). Converting Fillingham’s parole to 

special parole put his supervision in the same position it would have been at 

the time he committed his offense, before Artuso. Therefore, there has been no 

change in the law that has been retroactively applied to Fillingham. 

 

3 We note that to hold otherwise would lead to an absurd result. See Rich, 369 F.3d at 

90 (noting that not allowing the Commission to release a prisoner to a special parole term 

following revocation would have “the counterintuitive effect of allowing a special parole 

violator to attain less stringent regular parole terms, not as a result of good behavior, but 

instead as a result of a special parole violation.”). 

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B. 

Fillingham next argues that the Commission should not have considered 

his conviction in the United Kingdom in revoking his parole and imposing the 

maximum revocation sentence. He contends that the Commission is not 

authorized to revoke parole on the basis of a foreign conviction and that doing 

so deprives him of due process. None of the authorities Fillingham cites 

address whether the Commission is authorized to revoke parole on the basis of 

a foreign conviction. Moreover, the Commission’s internal policy manual 

provides that a foreign conviction generally may be treated as conclusive 

evidence of a law violation. 

Further, Fillingham’s due process rights were not infringed upon. See 

Morrissey v. Brewer, 408 U.S. 471, 480 (1972) (instructing that “revocation of 

parole is not part of a criminal prosecution and thus the full panoply of rights 

due a defendant in such a proceeding does not apply in parole revocations”). 

Our review of a parole revocation decision “is quite circumscribed,” and “[w]e 

simply ask whether there is some evidence in the record to support the

Commission’s decision.” Villarreal v. United States Parole Comm’n, 985 F.2d 

835, 839 (5th Cir. 1993). To lawfully revoke parole, the government is not 

required to have an arrest, a charge, and ultimately a conviction for a new 

criminal offense. See id. Instead, the Commission may consider evidence of 

dismissed state charges and charges that were subsequently overturned, as 

long as the acquittal or dismissal did not, as a matter of law, remove all factual 

support from the parole revocation. See id.; see also Else v. Johnson, 104 F.3d 

82, 83 (5th Cir. 1997). The United Kingdom conviction was “some evidence” to 

support the Commission’s parole revocation decision. The Commission also 

considered evidence of violations of the terms of parole aside from the United 

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Kingdom conviction, which would have supported a revocation of Fillingham’s 

parole. Accordingly, we affirm the district court’s dismissal of this claim.4 

C. 

Fillingham also argues that the Commission and Bureau of Prisons 

should have applied credit towards his sentence for the nine years he spent in 

prison in the United Kingdom. He specifically contends that the Commission 

violated the Double Jeopardy Clause by imposing multiple punishments for 

the same conduct when it relied on the United Kingdom conviction to revoke 

his parole and lengthen his sentence while also denying him foreign jail time 

credit. However, the Double Jeopardy Clause does not apply to parole 

revocation. United States v. Whitney, 649 F.2d 296, 298 (5th Cir. 1981). 

Fillingham also contends that 18 U.S.C. § 3585(b) does not permit the Bureau 

of Prisons to deny him credit because this statute was passed after his original 

criminal conviction.5 The predecessor to § 3585(b), former 18 U.S.C. § 3568, 

required that a federal prisoner receive “credit toward service of his sentence 

for any days spent in custody in connection with the offenses or acts for which 

 

4 Fillingham also argues that the Commission should not have considered the United 

Kingdom conviction because it was the result of a “Majority Jury Verdict” instead of a 

unanimous jury verdict. However, the government is not required to have a unanimous 

conviction for a new criminal offense in order to justify revocation. See, e.g., Villarreal, 985 

F.2d at 839. Fillingham also contends that the United Kingdom conviction is an improper 

basis upon which to revoke his parole because the Commission allegedly failed to cooperate 

with the United Kingdom authorities and provide the authorities with records allegedly 

crucial to his defense. This court, however, is not the proper forum for Fillingham to attack 

his United Kingdom conviction. 

5 Section 3585(b) states:

(b) Credit for prior custody.—A defendant shall be given credit toward the 

service of term of imprisonment for any time he has spent in official detention 

prior to the date the sentence commences— 

(1) as a result of the offense for which the sentence was imposed; or

(2) as a result of any other charge for which the defendant was arrested after 

the commission of the offense for which the sentence was imposed;

that has not been credited against another sentence. 

18 U.S.C. § 3585(b). 

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sentence was imposed.” Ballard v. Blackwell, 449 F.2d 868, 869 n.1 (5th Cir. 

1971). Fillingham offers no argument as to the former § 3568. Because 

Fillingham was imprisoned abroad for his foreign conviction and not for 

anything connected “with the offenses or acts for which [his] sentence was 

imposed,” he is not entitled to credit for the time he spent imprisoned in the 

United Kingdom. 

IV.

We next address Fillingham’s challenge to the dismissal of his claims for 

ineffective assistance of counsel and unlawful seizure of his property in his 

original criminal case. Fillingham also moves for compensation for his property 

that was allegedly taken from him without due process. We affirm the district 

court’s dismissal of these claims and deny Fillingham’s motion. 

28 U.S.C. § 2255 is the primary mechanism for collaterally attacking a 

federal sentence, and a 28 U.S.C. § 2255 motion must be filed with the 

sentencing court. Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000). Fillingham 

has filed the motion at issue in this appeal under § 2241. Section 2241 is the 

proper procedural vehicle for challenging the manner in which the sentence is 

executed, and a § 2241 petition must be filed in the district of incarceration. 

See Pack, 218 F.3d at 451. However, § 2255(e), known as the savings clause, 

permits a federal prisoner to challenge the legality of his conviction or sentence 

in a § 2241 petition when the remedy in § 2255 “is inadequate or ineffective to 

test the legality of his detention.” 28 U.S.C. § 2255(e). 

Fillingham was sentenced by the United States District Court for the 

District of South Carolina. He has not offered any evidence or argument as to 

why he satisfies § 2255(e)’s savings clause. The district court correctly 

concluded that these claims are not cognizable under § 2241 and that it lacked 

jurisdiction to consider them under § 2255. See Jeffers v. Chandler, 253 F.3d 

827, 830 (5th Cir. 2001) (noting that “the burden of coming forward with 

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evidence to show the inadequacy or ineffectiveness of a motion under § 2255 

rests squarely on the petitioner”). Accordingly, we also deny Fillingham’s 

motion for compensation for his property that was allegedly taken without due 

process. 

V.

For the first time on appeal, Fillingham appears to assert that he has 

filed in other cases a complaint under the Freedom of Information Act (FOIA) 

and a motion for a reduction of sentence under 18 U.S.C. § 3582(c)(2). 

Fillingham argues that the district court should have resolved these actions as 

ancillary matters to his § 2241 petition. His FOIA claim, originally filed in the 

Eastern District of Texas and transferred by the district court for proper venue 

to the District of South Carolina, was denied on appeal by the Fourth Circuit. 

Fillingham does not argue, much less demonstrate, that the district court 

abused its discretion in declining to permit him to amend the instant action to 

add a FOIA claim. See Rourke v. Thompson, 11 F.3d 47, 51 (5th Cir. 1993). 

Similarly, Fillingham did not raise his claim regarding his § 3582(c)(2) motion 

in the district court. Therefore, we will not consider it now on appeal. See 

Wilson v. Roy, 643 F.3d 433, 435 n.1 (5th Cir. 2011) (noting that claims raised 

for the first time on appeal will not be considered). Moreover, such a claim is 

not cognizable under § 2241. See 28 U.S.C. § 2255(e). 

VI.

For the reasons stated above, we AFFIRM the district court’s dismissal 

of Fillingham’s claims. We also DENY Fillingham’s motion for appointment of 

counsel and motion for compensation. 

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