Bannister v. Smith , 214 F. App'x 486 ( 2007 )

United States Court of Appeals
Fifth Circuit
IN THE UNITED STATES COURT OF APPEALS F I L E D
January 25, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-50436
Summary Calendar
RICHARD GORDON BANNISTER,
Petitioner-
Appellant,
versus
DENNIS SMITH, FCI La Tuna, Warden,
Respondent-
Appellee.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:05-CV-300
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Before DeMOSS, STEWART and PRADO, Circuit Judges.
PER CURIAM:*
Richard Gordon Bannister, federal prisoner # 18907-051, moves this court for leave to appeal
in forma pauperis (IFP) following the district court’s dismissal of his 28 U.S.C. § 2241 petition,
wherein he challenged a parole determination by the United States Parole Commission. The district
court denied IFP, certifying that the appeal was not taken in good faith. Bannister’s motion for IFP
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
is construed as a challenge to the district court’s certification. See Baugh v. Taylor, 117 F.3d 197,
202 (5th Cir. 1997).
Bannister argues that the Parole Commission failed to conduct an initial hearing within the
prescribed time, failed to return a timely decision after the initial hearing, and delayed in providing
him notice of its decision on the initial hearing. He further argues that the Parole Commission
miscalculated his offense severity rating, failed to respond to his administrative appeal within the
prescribed time, returned a more adverse decision on appeal, and failed to provide an adequate
explanation for its decision on appeal.
A federal court may not reverse the decision of the United States Parole Commission unless
the decision involves flagrant, unwarranted, or unauthorized action. Page v. United States Parole
Comm’n, 651 F.2d 1083, 1085 (5th Cir. 1981). Based on a review of the record, we conclude that
Bannister fails to show prejudice from the alleged delays in the hearing and action by the Parole
Commission. See id. at 1087. Further, the Commission’s action with respect to determining
Bannister’s parole release date based on aggravating factors was within its authorized discretion. See
Brown v. Lundgren, 528 F.2d 1050, 1055 (5th Cir. 1976). Bannister fails to show that the
Commission’s decision involved flagrant, unwarranted, or unauthorized action. See Page, 651 F.2d
at 1085.
Bannister has failed to show that his appeal involves “legal points arguable on their merits
(and therefore not frivolous).” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983)(internal quotation
marks and citation omitted). Accordingly, his motion for authorization to proceed IFP on appeal is
denied, and his appeal is dismissed as frivolous. See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R.
42.2.
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MOTION FOR IFP DENIED; APPEAL DISMISSED.
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