Kele v. United States Parole ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
OCT 2 1997
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT PATRICK FISHER
Clerk
ISTVAN KELE,
Petitioner - Appellant,
v. No. 97-1092
(D. Ct. No. 96-M-1708)
UNITED STATES PAROLE (D. Colo.)
COMMISSION,
Respondent - Appellee.
ORDER AND JUDGMENT *
Before TACHA, BALDOCK, and LUCERO, Circuit Judges.
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. 34.1.9. The cause is therefore ordered submitted without oral argument.
Pro se petitioner appeals from an order of the district court dismissing
petitioner’s petition for a writ of habeas corpus brought pursuant to 28 U.S.C.
*
This order and judgment is not binding precedent, except under the doctrines of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.
§ 2241. On appeal, petitioner argues that the district court was biased and that
the district court erred by denying appellant’s motion for the recusal of the
magistrate judge and the trial judge. Petitioner further alleges that the district
court erred in failing to appoint counsel, in holding that the Parole Commission
had sufficient evidence to conclude that petitioner was an accessory to a crime,
and in failing to require the Parole Commission to credit previous prison time to
the sentence imposed in this parole revocation. Finally, petitioner argues that the
district court erred in determining that the Parole Commission had not arbitrarily
imposed petitioner’s applicable guideline sentence. We affirm.
Petitioner in this action has filed numerous applications for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241. Petitioner was originally convicted and
sentenced on September 11, 1973 to a term of life imprisonment for armed bank
robbery, murder, and related crimes. Petitioner was initially paroled on
November 22, 1989, and was to remain under the jurisdiction of the United States
Parole Commission for life. After a hearing on a charge of unauthorized
possession of a firearm, the United States Parole Commission revoked petitioner’s
parole on February 6, 1992. The United States Court of Appeals for the Ninth
Circuit reversed that parole revocation in a habeas proceeding. Kele v. United
States Parole Commission, 1993 WL 478937 (9th Cir. 1993). Following reversal
by the Ninth Circuit, petitioner was released on December 6, 1993 after serving
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26 months. In September 1995 in Van Nuys, California, petitioner assisted Glen
Rogers in disposing of the body of a woman murdered by Rogers. On November
17, 1995, the United States Parole Commission issued a warrant charging
petitioner with parole violations consisting of a failure to maintain regular
employment, violation of the law as an accessory to the murder, and failure to
report to his parole officer. A parole revocation hearing was held at which the
hearing examiner considered petitioner’s defenses and written statement, the
testimony of law enforcement officers involved in the investigation of the murder,
and the testimony of petitioner’s parole officer. The hearing examiner found at
that time that petitioner had committed criminal conduct for which the sentencing
range was 52 to 64 months and recommended that petitioner be ordered to serve
60 months. Petitioner was notified on April 16, 1996, that his parole had been
revoked.
In this habeas proceeding, petitioner challenges various actions of the
district court that he claims require us to reverse the order of the district court
dismissing this action. Initially, relying on a series of determinations by the
district court related directly to this case, petitioner alleges that both the
magistrate judge and the district court judge were biased and that petitioner’s
motions to recuse should have been granted. We have reviewed the record in this
case thoroughly and find this argument meritless. There is no suggestion in this
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record that there was any bias or reason to recuse on the part of either the
magistrate judge or the district court judge. Construing petitioner’s allegations
liberally, as we must in the case of a pro se litigant, all of the reasons cited by the
petitioner as a basis for the allegation of bias relate to requests for continuances
and other matters directly related to the expeditious disposition of petitioner’s
motions and other filings. Even construing these allegations liberally, they cannot
form the basis for an allegation of bias or unfair treatment. At most, they
challenge the exercise of discretion by the magistrate judge and the district court
in handling the case. We review these allegations for an abuse of discretion and
find that there is no abuse under the circumstances of this case.
Petitioner further alleges that the district court violated his constitutional
rights by failing to appoint counsel after repeated requests. This claim on appeal
is without merit. The rule of this circuit is that no absolute right to counsel exists
in habeas corpus actions because such actions are civil, not criminal, proceedings.
United States v. Masters, 484 F.2d 1251, 1253 (10th Cir. 1973). There is no
constitutional right to counsel in a civil case; the determination of whether to
appoint counsel in a civil case is left to the sound discretion of the district court.
Shabazz v. Askins, 14 F.3d 533, 535 (10th Cir. 1994). Under the circumstances
of this case, the district court did not abuse its discretion in refusing to appoint
counsel. Petitioner here has made no showing of any fundamental unfairness that
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would even colorably impinge on due process rights.
Petitioner contends on appeal that the district court erred in concluding that
there was a rational basis for the Parole Commission’s determination that
petitioner violated the law as an accessory to the murder committed by Rogers.
The record contains an abundance of evidence upon which the Parole Commission
appropriately relied to make its determination that Mr. Rogers committed the
crime of murder, that the petitioner was aware of the murder, and that petitioner
was an accessory to the murder. When there is a rational basis for the Parole
Commission’s determination in the record, this court will not reverse that decision
in the absence of a showing that it was arbitrary, capricious, or an abuse of
discretion. Kele v. United States Parole Commission, 26 F.3d 1016, 1019 (10th
Cir. 1994) (citation omitted). The order of the district court contains a thorough
recitation of the facts upon which it relied in finding that the decision of the
Parole Commission was not arbitrary, capricious, or an abuse of discretion. We
agree and rely on substantially the evidence relied upon by the district court.
Finally, petitioner argues that the district court erred in concluding that the
Parole Commission did not act arbitrarily when it exceeded the recommended
sentencing range for petitioner’s salient factor score. The Parole Commission is
authorized to exceed the Sentencing Guidelines for good cause so long as written
notice of the reasons relied upon for the departure are provided. 18 U.S.C.
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§ 4206(c). In this case, the Commission gave notice of its action and stated that
the upward departure was warranted because, in the judgment of the Commission,
this petitioner represented a more serious risk than would be indicated by his
salient factor score. The Commission cited petitioner’s lack of good judgment.
The combination of the gravity of the crime involved in this case and the reasons
given by the Parole Commission constitute a rational basis for departing from the
Sentencing Guidelines. We agree with the district court that the Commission did
not abuse its discretion in determining the appropriate Sentencing Guideline
sentence.
Petitioner alleges in this case that he should have been credited with the 25
months that he previously spent in custody pursuant to the parole revocation that
was later reversed by the Ninth Circuit. The statute contains no authorization
directing the Commission to credit this previously served time. Thus, the district
court correctly refused to hold that the Parole Commission’s decision to deny
credit was a failure to follow the law. There is no basis for finding an abuse of
discretion.
This court notes that this is the latest in a series of repeated filings of
petitions for habeas corpus by this petitioner. Petitioner is notified specifically of
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the 1996 amendments to 28 U.S.C. § 2244 regarding second or successive habeas
corpus applications. The order of the district court is AFFIRMED and the appeal
DISMISSED.
ENTERED FOR THE COURT,
Deanell Reece Tacha
Circuit Judge
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