Oliver M. Boling v. Warden Troy Williamson

BLD-14 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-2583
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OLIVER M. BOLING,
Appellant
v.
WARDEN TROY WILLIAMSON
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 3-07-cv-00855)
District Judge: Honorable Edwin M. Kosik
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or Summary
Action Pursuant to Third Circuit L.A.R. 27.4 and I.O.P. 10.6
October 17, 2008
Before: MCKEE, FISHER and CHAGARES, Circuit Judges
(Opinion filed: December 31, 2008 )
_________
OPINION
_________
PER CURIAM
This is an appeal from the District Court’s dismissal of Oliver M. Boling’s habeas
corpus petition. For the following reasons, we will dismiss this appeal. See 28 U.S.C.
§ 1915(e)(2)(B)(i).

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For a more detailed discussion of the revocation of Boling’s parole, see Boling v.1
Smith, 277 F. Appx. 174 (3d Cir. 2008)(unpublished).
2
Boling was paroled from his sentence in the District of Columbia by the D.C.
Parole Board (“Board”) in 1998. His parole was revoked in 2000. Boling was1
transferred from the Board to the United States Parole Commission (“Commission”),
pursuant to the National Capital Revitalization and Self-Government Act of 1997. See
Pub. L. No. 105-33, § 11231(a)(1), 111 Stat. 712 (1997) (codified as amended at D.C.
Code § 24-131 (2001)). Initially, in 2003, the Commission ordered that Boling serve to a
presumptive reparole after 72 months, on April 9, 2005. The Commission, citing the
discovery of new information, ordered a special reconsideration hearing in 2004. At that
hearing, the Commission voided its previous determination and ordered that Boling serve
to a fifteen year reconsideration hearing in December 2018.
On May 5, 2005, Boling filed a habeas corpus petition in the United States District
Court for the Middle District of Pennsylvania arguing that the Board violated his
procedural due process rights in revoking his parole. The District Court denied his
petition. Boling appealed, and we affirmed the District Court’s order. See Boling v.
Smith, 277 F.App’x 174 (3d Cir. 2008)(unpublished).
On May 10, 2007, Boling filed the instant habeas corpus petition pursuant to 28
U.S.C. § 2241, alleging that the Commission’s order that he serve to a fifteen year
reconsideration hearing was discriminatory, vindictive, and retaliatory. The District

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3
Court dismissed the petition as an abuse of the writ.
We have recognized “that the abuse-of-the-writ doctrine applies to section 2241
petitions; thus, a petitioner may not raise new claims that could have been resolved in a
previous action.” Queen v. Miner, 530 F.3d 253, 255 (3d Cir. 2008) (per curiam). Boling
had an opportunity to challenge the Commission’s actions in his 2005 habeas corpus
petition but failed to do so. See Boling, 277 F. App’x at 176 n.1. Therefore, Boling must
establish either: 1) cause and prejudice, i.e., that some objective external factor impeded
his efforts to raise the claim earlier and that actual prejudice resulted from the alleged
errors; or 2) a fundamental miscarriage of justice would result from a failure to entertain
his claim. See United States v. Roberson, 194 F.3d 408, 410 (3d Cir. 1999).
We agree with the District Court that Boling has failed to demonstrate cause and
prejudice. Boling argued that he has not filed a previous petition raising the same issues
he raises in the instant action. The Supreme Court has held that the abuse of writ doctrine
precludes inmates from relitigating the same issues in subsequent petitions or from
raising new issues that could have been raised in an earlier petition. See McCleskey v.
Zant, 499 U.S. 467, 489 (1991) (“Our recent decisions confirm that a petitioner can abuse
the writ by raising a claim in a subsequent petition that he could have raised in his first,
regardless of whether the failure to raise it earlier stemmed from a deliberate choice.”)
Since the events leading to Boling’s complaint occurred prior to 2005, he should have
raised the instant claims in his first petition.

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Likewise, Boling has failed to show that a fundamental miscarriage of justice
would occur if his petition is dismissed as an abuse of the writ. A fundamental
miscarriage of justice may arise where “a petitioner supplements a constitutional claim
with a colorable showing of factual innocence.” Id. at 495 (quotation and citation
omitted). Boling has not presented a colorable claim of factual innocence.
Accordingly, because Boling’s appeal lacks arguable legal merit, we will dismiss it
pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
4

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