Unpublished Disposition, 885 F.2d 875 (9th Cir. 1987)

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U.S. Court of Appeals for the Ninth Circuit - 885 F.2d 875 (9th Cir. 1987)

Ildefonso REINA-HERRERA, Petitioner-Appellant,v.Richard H. RISON, Respondent-Appellee.

No. 88-6269.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 23, 1989.* Decided Sept. 12, 1989.

Before BROWNING, FARRIS and WILLIAM A. NORRIS, Circuit Judges.


MEMORANDUM** 

Ildefonso Reina-Herrera, a federal prisoner, appeals pro se the district court's denial of his 28 U.S.C. § 2241 habeas petition. The district court dismissed Reina-Herrera's petition for lack of jurisdiction. We review de novo Roberts v. Corrothers, 812 F.2d 1173, 1178 (9th Cir. 1987). We affirm.

Reina-Herrera is serving two consecutive prison sentences of eight and twelve years for narcotics offenses in violation of 21 U.S.C. §§ 841, 846. On November 2, 1987, Reina-Herrera filed a petition for habeas corpus alleging that the Parole Commission denied him due process by wrongly, and in violation of commission rules, placing him in Offense Category Eight. Reina-Herrera cites to 28 C.F.R. Sec. 2.20 (1988) which sets forth the criteria for designating offense categories, including a reduction to Category Six for offenders bearing only a "peripheral role" in the commission of their offense. See 28 C.F.R. Sec. 2.20, chapter thirteen. He contends that the Parole Commission improperly refused to classify his role as peripheral. Because Reina-Herrera's petition disputes a factual determination left by Congress to the exclusive judgment and discretion of the Parole Commission, his petition was properly dismissed.

In Wallace v. Christensen, 802 F.2d 1539 (9th Cir. 1986) (en banc), we addressed the proper scope of review for Parole Commission determinations. We stated that "unless a Petitioner alleges the Commission acted beyond the scope of discretion granted by Congress, a federal court has no jurisdiction." Id. at 1551. A mere allegation that the Commission has abused its discretion will not suffice. Id.

Reina-Herrera contends that he served only a peripheral role in the commission of his offense. Whether this is so or not is a factual question left to the discretion of the Parole Commission. See id. Since a finding that Reina-Herrera did not qualify for the "peripheral role" reduction was within the scope of authority given to the Commission, the district court lacked jurisdiction to review the finding.

Neither does Reina-Herrera's claim that the Commission failed to follow its own rules provide a basis for granting review. We recognize that when, as here, review is limited to the scope of authority, a court may consider whether the Commission failed to apply the statute. But there is no dispute that 28 C.F.R. Sec. 2.20 was used to establish Reina-Herrera's offense category; his objection is to the Commission's application of the rule. The dispute concerns a matter for which there is no subject matter jurisdiction.

AFFIRMED.

 *

The panel unanimously agrees that this case is appropriate for submission without oral argument per FRAP 34(a) and CA9 Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this Circuit except as provided by CA9 Rule 36-3