Wilfred Hart v. United States

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 21, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 10-10088
Non-Argument Calendar
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D.C. Docket No. 1:08-cv-21426-JAL
WILFRED HART,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
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(June 21, 2010)
Before BIRCH, CARNES and FAY, Circuit Judges.
PER CURIAM:
Wilfred Hart, a federal parolee, appeals through counsel, the district court’s
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denial of his 28 U.S.C. § 2241 habeas corpus petition.
In 1988, Hart was convicted of two counts of conspiracy to possess with
intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and
eleven counts of possession with intent to distribute cocaine, in violation of 21
U.S.C. § 841(a)(1). The district court sentenced Hart to 15 years imprisonment on
each of those counts, with the sentences on the conspiracy counts to run
consecutively and the sentences on the possession counts to run concurrently to
one another and to the sentences on the conspiracy counts. Hart was also
sentenced to a 10-year special parole term on each of the possession counts, with
those terms to be served concurrently to one another. All told, Hart received a total
sentence of 30 years imprisonment plus 10 years of special parole.
In his initial brief, Hart argued that the United States Parole Commission
violated Bifulco v. United States, 447 U.S. 381, 100 S.Ct. 2247 (1980), by
beginning his 10-year special parole term after the regular parole term on his
conspiracy convictions had terminated. In Bifulco, the Supreme Court held that a
sentencing court could not impose a special parole term for conspiracy drug
convictions under 21 U.S.C. § 846. Id. at 400, 100 S.Ct. at 2259. Hart concedes in
his reply brief that his special parole term began at the appropriate time and asserts
for the first time that paperwork issued by the Parole Commission improperly
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suggests that his special parole term attached to his conspiracy convictions instead
of his possession convictions. He asks us to order that his special parole term only1
be applied to his possession convictions and to instruct the Commission to issue a
corrected sentence computation. Because Hart raised that argument for the first
time in his reply brief, we treat it as waived. United States v. Evans, 473 F.3d
1115, 1120 (11th Cir. 2006) (arguments first raised in reply brief are deemed not
properly preserved). In any event, we find his argument to be meritless and affirm
the district court’s denial of his habeas petition.
AFFIRMED.
His reply brief states: “Mr Hart has conceded that his ten year term of special parole1
began after he completed his term of regular parole on his thirty (30) year sentence. . . . While,
technically, Mr. Hart’s sentence may appear to be calculated correctly by the Bureau of Prisons,
it is imperative that the Commission’s paperwork be made clear in order to determine that Mr.
Hart’s sentence is in accordance with the law.”
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