Two letters, attached to the presentence report were included in Ybarra’s institutional file and were examined by the Parole Commission before denying him parole in March 1978, and again in March 1979. After the second denial Ybarra filed a petition for a writ of habeas corpus and requested that the letters be removed from his file. The magistrate judge denied the petition and Ybarra appealed to the district court. The district court also denied the request and from this denial Ybarra appealed to this Court.
The issue raised on this appeal is whether there is a rational basis in the record for the Parole Board’s denial of the petitioner’s request for parole in light of the fact the Board considered two letters that the appellant argues should not be in his prison file.
Several federal courts have held and we follow that the Parole Board has broad discretion and in reviewing a Parole Board’s decision a court may not substitute its judgment for that of the Board. Zannino v. Arnold, 531 F.2d 687 (3d Cir.1976). See I.C. § 20-223. Therefore, the scope of review is limited to determining whether the information relied on by the Parole Board was sufficient to provide a factual basis for the reasons given. “The inquiry is not whether the Board 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 Board’s conclusions embodied in its statement of reasons.” Zannino at 691.
The appellant argues that there is not a rational basis to support the Board’s decision because in denying parole the Board considered two letters that contained hearsay and unsubstantiated allegations. The appellant requests that either the letters be removed from his file or he be given a full evidentiary hearing to challenge the credibility of the letters.
John P. Harwell, the Executive Secretary of the Commission for Pardons and Parole stated in an affidavit before the district court that the letters were “only one factor in the decision” and that “[t]he Parole Commission also relied upon the pre-sentence investigation report in this matter which stated that the Petitioner had been selling drugs to juveniles.”
We hold that the Parole Board’s reliance on the pre-sentence report, including the two letters received from the police officers, is sufficient to establish a rational basis for the decision. Even though the letters contained hearsay they could be taken into account by the Parole Board because I.C. § 20-225 allows the Parole Board to consider information used by the sentencing court and Rule 37(d) of the Idaho Rules of Criminal Practice and Procedure1 states that a sentencing judge may consider information of a hearsay nature if the presentence investigator believes the information is reliable. Therefore, since the letters were available to the sentencing judge they can also be considered by the Parole Board.
We hold there was a rational basis for the Board’s conclusions and affirm the denial of the petition for a writ of habeas corpus.
SHEPARD, BAKES and HUNTLEY, JJ., concur.. The Idaho Rules of Criminal Practice and Procedure were in effect at the time this petition was filed. Rule 37(d) is almost identical to the current I.C.R. 32(e). I.C.R. 32(e) went into effect on July 1, 1980.