           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            June 4, 2009
                                       No. 07-41029
                                                                       Charles R. Fulbruge III
                                                                               Clerk
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



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                  No. 07-41029

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

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                                   No. 07-41029

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.



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