John Oscar Brothers, Petitioner-appellant, v. United States Parole Commission; Mark Henry, Respondents-appellees, 5 F.3d 535 (9th Cir. 1993)

MEMORANDUM^** 

Federal prisoner John O. Brothers appeals pro se the district court's denial of his habeas petition challenging the revocation of his parole. The United States Parole Commission found that Brothers violated parole by possessing a firearm, based on his arrest and prosecution (and subsequent acquittal) on state charges of being a felon in possession of a firearm and unauthorized possession of a firearm. We have jurisdiction pursuant to 28 U.S.C. § 2253. We review the denial of a petition for a writ of habeas corpus de novo, Vargas v. United States Parole Comm'n, 865 F.2d 191, 193 (9th Cir. 1988), and we affirm.

SUFFICIENCY OF THE EVIDENCE

Brothers alleges that there was insufficient evidence to support the Commission's finding that he had violated his parole by possessing a firearm, and that the Commission erred by considering evidence from a state court proceeding that resulted in an acquittal.¹ 

Review of the Commission's parole decision is "exceedingly narrow," and this court will review the decision only where the Commission has acted outside the parole guidelines or has acted arbitrarily so as to violate a prisoner's right to due process. Walker v. United States, 816 F.2d 1313, 1316 (9th Cir. 1987) (per curiam). The Commission may revoke parole if it finds that a parolee has violated a condition of his parole, see United States v. Miller, 514 F.2d 41, 42 (9th Cir. 1975) (per curiam), based on a preponderance of the evidence taken as a whole, see Walker, 816 F.2d at 1317. The Commission may use as evidence dismissed criminal charges in considering revocation of parole. Bowen v. United States Parole Comm'n, 805 F.2d 885, 888 (9th Cir. 1986); 28 C.F.R. Sec. 2.19(c).²  Neither the credibility of evidence in parole cases, see Roberts v. Corrothers, 812 F.2d 1173, 1179 (9th Cir. 1987), nor the Commission's reliance on police reports, is reviewable, see id., Wallace v. Christensen, 802 F.2d 1539, 1551 (9th Cir. 1986) (en banc).

The police report of Brothers's arrest on the weapons charge and the testimony of the arresting officer during the state trial indicate that during a police raid Brothers was discovered sitting next to a gun. The police officers reported they observed Brothers trying to hide the gun. The Commission's decision not to credit Brothers's testimony, that he did not touch the gun which he alleged was his wife's, is not reviewable by this court. See Roberts, 812 F.2d at 1179. There was sufficient evidence for the Commission to conclude there was a preponderance of evidence that Brothers possessed a firearm, thereby constituting a basis for revocation of his parole. See Miller, 514 F.2d at 42.

DUE PROCESS

Brothers contends that the Commission violated his right to due process when it failed to disclose in advance the evidence presented at the revocation hearing. In a parole revocation hearing, due process requires: "(a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person; (d) with the right to confront witnesses; (e) before a neutral hearing body; and (f) a written statement listing the evidence and reasons for revoking parole." Morrissey v. Brewer, 488 U.S. 471, 489 (1972). The Commission considered evidence of the original police report, the preliminary hearing, the Commission's violation report, court documents submitted by the public defender's office, and a phone memo of August 7, 1991 of a conversation between the Commission and the prosecutor. Brothers received notice of all of this evidence, except for the phone memo, in a July 11, 1991 probable cause letter sent to him by the Commission. The Commission also disclosed to Brothers the phone memo and provided him an opportunity to contest its contents prior to revoking his parole. Consequently, the Commission did not violate Brothers's due process rights. See id.

AFFIRMED.