FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT March 9, 2020 _________________________________ Christopher M. Wolpert Clerk of Court JONATHAN MARSHALL, SR., Petitioner - Appellant, v. No. 19-3236 (D.C. No. 5:19-CV-03113-JWL) DON HUDSON, * Warden, USP- (D. Kan.) Leavenworth, Respondent - Appellee. _________________________________ ORDER AND JUDGMENT ** _________________________________ Before HARTZ, PHILLIPS, and EID, Circuit Judges. _________________________________ Jonathan Marshall, a federal prisoner proceeding pro se, appeals the district court’s denial of his 28 U.S.C. § 2241 petition. In his petition, Marshall seeks home release under the First Step Act’s pilot program for eligible-elderly offenders. The district court denied Marshall’s petition after concluding that the Attorney General has the sole discretion to include eligible offenders in the pilot program. We affirm. * We have substituted the current warden of Leavenworth, Don Hudson, for the former warden of Leavenworth, Nicole English, under Federal Rule of Civil Procedure 25(d). ** This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. BACKGROUND I. Factual Background On April 4, 2006, a grand jury indicted Marshall and his sister, Cheryl Abercrombie, for tax fraud. Marshall v. United States, No. A06-CR-067(1)-LY, 2010 WL 2232808, at *1 (W.D. Tex. June 1, 2010). The indictment included forty counts, all of which named Marshall as a defendant. Id. Specifically, the first count charged him “with corrupt interference with internal revenue laws and aiding and abetting, in violation of 26 U.S.C. § 7212(a) and 18 U.S.C. § 2,” while “counts two through forty charged Marshall with assisting in filing false income tax returns and aiding and abetting, in violation of 26 U.S.C. § 7206(2) and 18 U.S.C. § 2.” Id. After an eleven-day trial, the jury found Marshall guilty on every count. Id. As a result, on February 16, 2007, the district court sentenced Marshall to 216 months in prison. Id. The Fifth Circuit dismissed Marshall’s direct appeal of his sentence “for want of prosecution.” Id. (citing United States v. Marshall, No. 07–50294 (5th Cir. Jan. 8, 2008)). Marshall’s later collateral attacks on his sentence were, likewise, unsuccessful. United States v. Marshall, 431 F. App’x 314, 315 (5th Cir. 2011) (unpublished); Marshall v. United States, No. A-06-CR-067(1)-LY, 2010 WL 743791, at *1–19 (W.D. Tex. Mar. 3, 2010) (concluding that Marshall’s twenty-eight pronged § 2255 petition, which asserted “a sea of novel claims,” did not warrant habeas relief). 2 With his direct and collateral challenges rejected, Marshall was forced to complete his 216-month sentence, which he is serving in Leavenworth, Kansas. On June 24, 2019, after completing 148 months of that sentence, Marshall filed a 167- page petition for a writ of habeas corpus under 28 U.S.C. § 2241 in the United States District Court for the District of Kansas. Marshall was sixty-nine years old when he filed his petition. Unlike his ...
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