F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 12 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
DELMAN WESLEY BALL,
Petitioner - Appellant,
No. 02-6116
v. D.C. No. CIV-01-1224-M
(W.D. Oklahoma)
UNITED STATES PAROLE
COMMISSION; T. C. PETERSON,
Respondents - Appellees.
ORDER AND JUDGMENT *
Before KELLY, McKAY, and MURPHY, Circuit Judges. **
Plaintiff-Appellant Delman Wesley Ball, a federal inmate appearing pro se,
appeals the district court’s denial of his 28 U.S.C. § 2241 habeas petition. On
April 26, 1983, Mr. Ball pleaded guilty in federal court to assault with a
dangerous weapon during a bank robbery and was sentenced to 22 years in prison.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
On September 8, 1999, Mr. Ball was released on parole, but was arrested in
January 2000 for parole violation. After a revocation hearing in which Mr. Ball
was found guilty of violating his parole, the United States Parole Commission
(“USPC”) revoked his parole and set a presumptive parole date of May 14, 2001.
On July 24, 2000, while serving his sentence at a federal prison, Mr. Ball
was charged in an incident report with assault, possession of anything not
authorized, and insolence. The incident report stated that Mr. Ball became
hostile, swore at and pushed a correctional officer into a wall upon being
confronted for possessing an unauthorized radio. Although at the disciplinary
hearing Mr. Ball denied intentionally pushing the officer, he was found guilty of
all three charges and received disciplinary confinement.
Thereafter, the USPC ordered a rescission hearing to determine if Mr.
Ball’s parole date should be deferred based on the violations. The hearing
examiner determined that in light of the violations and Mr. Ball’s poor record of
behavior, the violative behavior should be viewed as new criminal behavior and
rated as category three conduct under the applicable guidelines. Applying those
guidelines, the hearing examiner recommended Mr. Ball serve an additional 16
months, thereby delaying his presumptive parole date to September 15, 2002. The
USPC agreed with the recommendation and adopted the new presumptive parole
date. Mr. Ball appealed, and the National Appeals Board affirmed.
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Mr. Ball then challenged the USPC decision establishing his presumptive
parole date at September 15, 2002 by seeking a writ of habeas corpus in federal
court pursuant to 28 U.S.C. § 2241. His three related grounds for relief are: (1)
the USPC erroneously determined that he had engaged in new criminal conduct,
and therefore applied the wrong guidelines; (2) the USPC abused its discretion by
making an independent determination, without supporting regulations, that the
conduct described in the incident report could be classified as new criminal
conduct; and (3) he was denied due process when the USPC considered the
institutional disciplinary report without a recommendation from the disciplinary
hearing officer. ROA Doc. 19 at 3, 8, 18. The district court denied Mr. Ball’s
habeas petition and adopted the report and recommendation of the magistrate
judge. Mr. Ball now seeks to appeal that decision and has moved to proceed in
forma pauperis.
We review the district court’s decision to deny habeas relief de novo.
Hunnicutt v. Hawk, 229 F.3d 997, 1000 (10th Cir. 2000). However, we will not
disturb a decision by the USPC “unless there is a clear showing of arbitrary and
capricious action or an abuse of discretion.” Sotelo v. Hadden, 721 F.2d 700, 702
(10th Cir. 1983). “The inquiry is not whether the Commission’s decision is
supported by the preponderance of the evidence, or even by substantial evidence;
the inquiry is only whether there is a rational basis in the record for the
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Commission’s conclusions embodied in its statement of reasons.” Misasi v.
United States Parole Comm'n, 835 F.2d 754, 758 (10th Cir. 1987). We do not
reweigh evidence, make credibility determinations, or substitute our judgment for
the Commission’s. Fiumara v. O'Brien, 889 F.2d 254, 257 (10th Cir. 1989).
Because Mr. Ball is representing himself on appeal, his pleadings will be liberally
construed. Haines v. Kerner, 404 U.S. 519, 520 (1972).
After carefully reviewing Mr. Ball’s arguments, the magistrate judge’s
report and recommendation, the district court’s order, and the entire record, we
conclude that even construed liberally, Mr. Ball’s arguments before us
substantially mirror those advanced and ruled on below. See Aplt. Br. at 14. We
are satisfied that the district court, in adopting the magistrate judge’s report and
recommendation, applied the proper standard of review and did not err in
concluding that the USPC’s actions were neither arbitrary and capricious nor an
abuse of discretion. We agree with the district court that the USPC’s decision
was supported by a rational basis in the record and the applicable regulations.
Furthermore, we conclude that Mr. Ball was not denied due process in the
proceedings before the USPC. We decline to consider Mr. Ball’s equal protection
claim as it was raised for the first time on appeal. See McDonald v.
Kinder-Morgan Inc., 287 F.3d 992, 999 (10th Cir. 2002).
We AFFIRM the judgment of the district court for substantially the same
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reasons contained in the magistrate judge’s report and recommendation, ROA
Doc. 24, and GRANT leave to proceed in forma pauperis.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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