Unpublished Disposition, 902 F.2d 40 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 902 F.2d 40 (9th Cir. 1990)

Irving Lopez NAPUE, Petitioner-Appellant,v.R.D. BREWER, Respondent-Appellee.

No. 89-55483.

United States Court of Appeals, Ninth Circuit.

Submitted April 9, 1990.* Decided April 30, 1990.

Before GOODWIN, Chief Judge, TANG and BOOCHEVER, Circuit Judges.


Irving Lopez Napue ("Napue") appeals the district court's denial of his petition for the writ of habeas corpus. Napue alleged various errors in the United States Parole Commission's processing of his parole application. We affirm.


1. Federal Rule of Criminal Procedure 32(c) (3) (D)

Napue claims that the sentencing court failed to comply with Rule 32(c) (3) (D) and thus prejudiced the outcome of his parole hearing. Napue seems to suggest that this alleged Rule 32 violation entitles him to a remand to the sentencing court in Illinois.

As a general rule, we will not review an issue not raised below. Quinn v. Robinson, 783 F.2d 776, 814 (9th Cir.), cert. denied, 479 U.S. 882 (1986). Though we have discretion not to apply this rule, we normally exercise that discretion only where the issue is purely legal and the record has been fully developed below. Id. Here, Napue failed to raise the Rule 32 issue before the district court. We do not exercise here our discretion to review this alleged Rule 32 violation because it is a factual issue and the record below has not been developed.

2. Adversary Hearing on the Presentence Report

Napue contends that the district court erred when it failed to hold an adversary hearing concerning his challenges to the presentence report.

We conclude there was no error. When a prisoner seeks parole, due process requires only that he or she (1) be apprised of the information on which the Parole Commission may rely, and (2) have an opportunity to refute that information, either at the parole hearing or upon administrative appeal. See Roberts v. Corrothers, 812 F.2d 1173, 1179 (9th Cir. 1987). Napue has failed to state a due process violation. Napue claims neither that he was unaware of the information against him nor that he lacked an opportunity to refute that information.

Napue further asserts that the Parole Commission based his salient factor score and severity rating on erroneous information in the presentence report. However, as stated, although he had the opportunity to submit his version of the facts for inclusion in the presentence report, he failed to do so. Because Napue waived his opportunity to correct the report, there was no violation of constitutional rights because of alleged errors in the report.

Napue finally claims that his segregation from the rest of the prison population during the pendency of his habeas corpus petition entitles him to relief. This claim was not raised before the district court and we decline to review the claim because it is a factual issue for which the record below has not been developed.



The panel unanimously agrees that this case is appropriate for submission without oral argument. Fed. R. App. P. 34(a); 9th Cir. 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 9th Cir.R. 36-3