Sherman v. Reilly

FILED
NOT FOR PUBLICATION JAN 07 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
BRENT STEVEN SHERMAN, Sr., No. 07-35337
Petitioner - Appellant, D.C. No. CV-05-01252-OMP
v.
MEMORANDUM *
EDWARD F. REILLY, Jr., chairman;
et al.,
Respondents - Appellees.
Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, District Judge, Presiding
Submitted December 15, 2009 **
Before: GOODWIN, WALLACE, and FISHER, Circuit Judges.
Federal prisoner Brent Steven Sherman, Sr. appeals pro se from the district
court’s judgment dismissing his 28 U.S.C. § 2241 habeas petition. Sherman
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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challenges his parole revocation on due process and Fourth Amendment grounds.
The stay of this case, entered on August 6, 2009, is lifted. Sherman’s motion for
prompt resolution of this appeal, filed July 6, 2009, is granted. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
First, Sherman contends that his due process rights were violated by the
Parole Commission’s delay in issuing a parole violator warrant. Because Sherman
failed to establish the requisite prejudice, see Meador v. Knowles, 990 F.2d 503,
506 (9th Cir. 1993), this claim is without merit.
Second, Sherman contends that his due process rights were violated because
his parole officer allegedly lied at the revocation hearing. Because Sherman had an
opportunity to cross-examine the officer at the hearing, his due process rights were
not violated. See Morrisey v. Brewer, 408 U.S. 471, 489 (1972) (stating that
minimal due process protections applicable to parole revocation hearing include
right to confront and cross-examine adverse witnesses).
Third, Sherman contends that his parole violator warrant was not supported
by probable cause and hence violated the Fourth Amendment. We rejected this
argument in Sherman v. United States Parole Commission, 502 F.3d 869, 884 (9th
Cir. 2007) (holding that “the Fourth Amendment does not require an administrative
parole violator warrant to be supported by oath or affirmation”).
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Fourth, Sherman contends that the Parole Commission violated his due
process rights by holding a second revocation hearing seven months after the first
hearing. The district court’s finding that the Commission did not initiate a new
hearing, but rather continued the original hearing, is not clearly erroneous.
Fifth, and relatedly, Sherman contends that this seven-month delay violated
his due process rights. Because Sherman failed to establish the requisite prejudice,
Vargas v. United States Parole Comm’n, 865 F.2d 191, 194 (9th Cir. 1988), this
claim is without merit.
Sixth, Sherman contends that the revocation proceedings violated due
process because the Commission failed to prove fraudulent intent beyond a
reasonable doubt. The hearing examiner’s application of the preponderance
standard was proper. See Standlee v. Rhay, 557 F.2d 1303, 1307 (9th Cir. 1977).
Furthermore, the Commission’s discretionary determination to revoke parole based
on this charge was not so arbitrary or capricious as to violate due process. See
Benny v. United States Parole Comm’n, 295 F.3d 977, 981-82 (9th Cir. 2002)
(stating that Court’s jurisdiction to review Parole Commission’s discretionary
determinations is limited).
Seventh, Sherman contends that his due process rights were violated because
the hearing examiner revised his fraud loss calculation, resulting in an increased
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severity rating and longer recommended revocation sentence, only after the
hearing. Sherman received notice of the basis for the determination and exercised
his opportunity to appeal the determination administratively. Accordingly, this
claim fails. See Bowles v. Tennant, 613 F.2d 776, 779 (9th Cir. 1980) (no due
process violation where prospective parolee was only informed of basis for
severity rating in notice of action after hearing but had opportunity to appeal
administratively).
Eighth, Sherman contends that he was entitled to immediate termination of
parole supervision under 18 U.S.C. § 4211(c)(1) because his combined early
termination and parole revocation hearing was not held within five years of his
release on parole. This argument is foreclosed by Benny, 295 F.3d at 982-985(holding that failure to hold early termination hearing within five years as required
under § 4211(c)(1) entitles parolee to considered decision on termination, not
immediate termination of parole supervision).
Finally, Sherman contends that the district court abused its discretion by not
individually addressing each of his pending motions and requests. The district
court acted within its discretionary powers in dismissing as moot Sherman’s
pending motions and requests.
AFFIRMED.
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