Unpublished Disposition, 841 F.2d 1129 (9th Cir. 1988)

MEMORANDUM^* 

Appellant Clarence E. Jones appeals the denial of his writ of habeas corpus. In his petition, Jones attacks his parole revocation hearing on three grounds: (1) a denial of due process in that the Parole Commission found the petitioner to have possessed heroin with intent to distribute even though this was not raised as one of the grounds for revocation in the original parole violator's warrant; (2) a denial of due process in that the parole revocation hearing was untimely; and (3) double jeopardy. We conclude that there were adequate grounds demonstrated to justify revoking Jones' parole, that petitioner has not demonstrated any prejudice resulting from any alleged delay in holding the revocation hearing, and that petitioner has not demonstrated that the double jeopardy clause is implicated in a parole revocation hearing. Additionally, we decline to address Jones' additional argument that the district court used the wrong standard of review in denying his writ of habeas corpus because Jones neglected to raise this argument during the agency proceedings. Therefore, we affirm.

Standard of Review

Claims of constitutional violations by the Parole Commission are reviewed de novo. Wallace v. Christensen, 802 F.2d 1539, 1550 (9th Cir. 1986). In reviewing a decision of the district court, we may affirm on any ground finding support in the record. Salmeron v. United States, 724 F.2d 1357, 1364 (9th Cir. 1983).

(1) Denial of Due Process Due to Failure to Notify Jones of Possession with Intent to Distribute Charge

Because a parolee's liberty involves significant values protected by the due process clauses of the fifth and fourteenth amendments, the minimum requirements of due process include written notice of the claimed violations of parole. Morrissey v. Brewer, 408 U.S. 471, 489, 92 S. Ct. 2593, 2604, 33 L. Ed. 2d 484 (1972); Vanes v. United States Parole Commission, 741 F.2d 1197, 1199 (9th Cir. 1984). The purpose of this notice is to permit the parolee "the opportunity to contest the facts and present a defense or mitigating factors." Id. at 1200-01. Therefore, in this circuit, if a parolee knows the charges against him and the possible penalties, the requirements of due process, as announced in Vanes, are satisfied. Bowen v. United States Parole Commission, 805 F.2d 885, 887 (9th Cir. 1986).

While it is true that Jones was not informed of the charge of possession with intent to distribute drugs, it is also true that Jones was never formally "charged" with this offense. Rather, the Parole Commission concluded that from the packaging of the illegal drugs possessed by Jones, there was some evidence from which an intent to distribute could be inferred. Under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., some evidence is all that is necessary to support an administrative decision. See also Kramer v. Jenkins, 803 F.2d 896, 901 (7th Cir. 1986). Additionally, sufficient other grounds supporting the revocation of parole clearly exist in the present case, including a state conviction.

We agree with the district court's conclusion that in essence, petitioner appears to be contesting the grounds for the severity rating of his offense. However, there is no recognized due process right to a prehearing notice that the Commission might consider the circumstances surrounding the offense when rating its severity provided that at some point during the administrative appeal process, the parolee is informed of the basis for the severity rating of his offense. Bowles v. Tennant, 613 F.2d 776, 779 (9th Cir. 1980); Grattan v. Sigler, 525 F.2d 329 (9th Cir. 1975). Unlike Grattan, where the prisoner remained uninformed throughout his administrative appeal, both Jones and the parolee in Bowles learned of the basis for the severity rating of their respective offenses during the administrative appeals process. In fact, Jones presented arguments in rebuttal to this allegation during his administrative appeal. We cannot conclude that Jones' has been denied due process of law on this basis.

The second Vanes requirement, that the parolee knew of the possible penalties involved, was clearly satisfied. In the warrant application, a copy of which was delivered to Jones, the Parole Commission expressly stated: "If you have been convicted of a new offense (committed while on parole) which is punishable by a term of imprisonment, you will not receive sentence credit for the time you spent on parole."

(2) Denial of Due Process Because of Untimely Hearing

Jones alleges that federal parole officials' decision to defer execution of the parole revocation warrant while he was incarcerated on state charges resulted in an untimely parole revocation hearing in violation of his due process rights. However, deferral of the revocation decision did not deprive Jones of any due process rights. Nothing in the controlling statutes or regulations give Jones "any 'right' to force the decision of the Commission at this time." Moody v. Daggett, 429 U.S. 79, 97 S. Ct. 274, 279, 50 L. Ed. 2d 236 (1976). Additionally, "if revocation is chosen, the Commission has the power to grant, retroactively, the equivalent of concurrent sentences...." Id. Finally, Jones has failed to show that the delay was either unreasonable or prejudical, both of which are required to establish an unconstitutional delay, Hopper v. United States Parole Commission, 702 F.2d 842, 845 (9th Cir. 1983).

(3) Double Jeopardy

Lastly, this circuit has held that the double jeopardy clause is not implicated by parole revocations. Standlee v. Rhay, 557 F.2d 1303, 1307 (9th Cir. 1983). Moreover, the record clearly reflects the Commission had withheld any intention of allowing the state imposed punishment suffice for federal purposes.

For all of the above reasons, we affirm the district court's denial of petitioner's writ of habeas corpus.

AFFIRMED.