F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 30 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
STEVEN ALAN SPEAR,
Petitioner-Appellant,
v. No. 02-3120
(D.C. No. 00-CV-3389-RDR)
STEVEN L. ANDRASCHKO, (D. Kansas)
Commandant,
Respondent-Appellee.
ORDER AND JUDGMENT *
Before EBEL , BALDOCK , and LUCERO , Circuit Judges.
Steven Alan Spear appeals from the district court’s denial of his habeas
petition, filed pursuant to 28 U.S.C. § 2241. Petitioner raised eleven issues
before the district court, challenging various aspects of his parole revocation
hearing before the Army Clemency and Parole Board. He raises seven issues on
*
The case is unanimously ordered submitted without oral argument pursuant to
Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. The 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.
appeal. 1 Because all of these arguments are meritless, we exercise jurisdiction
under 28 U.S.C. §§ 1291 and 2253(a), and affirm.
We review the district court’s decision to deny habeas relief de novo. Khan
v. Hart , 943 F.2d 1261, 1262 (10th Cir. 1991). However, our review is “a narrow
one, and the [parole board’s] decision should not be disturbed by the courts 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).
On appeal, Spear’s chief contention is that the parole board and the district
court erred in failing to apply certain provisions from the Manual for
Courts-Martial and the Rules for Courts-Martial. However, these authorities
apply only to proceedings before courts-martial, which are strictly courts of
criminal jurisdiction. Because parole revocation is not part of a criminal
prosecution, “the full panoply of rights due a defendant in such a proceeding does
not apply.” Morrissey v. Brewer , 408 U.S. 471, 480 (1972). Spear’s claims based
on 10 U.S.C. § 831(b) are similarly baseless because the language of this
provision of the Uniform Code of Military Justice clearly states that it protects
against self-incriminatory statements that may be used as evidence against a
1
Appellee asserts that petitioner has exhausted all available military
remedies. See Schlesinger v. Councilman , 420 U.S. 738, 758 (1975).
-2-
suspect or accused “in a trial by court-martial.” Id. This provision does not apply
to petitioner’s parole proceedings.
Upon review of the balance of petitioner’s arguments in light of the
applicable constitutional protections, we conclude that the parole board’s decision
was neither arbitrary and capricious nor an abuse of its discretion. The judgment
is therefore AFFIRMED . Petitioner’s motion to supplement his opening brief is
granted. The mandate shall issue forthwith.
Entered for the Court
Carlos F. Lucero
Circuit Judge
-3-