Unpublished Disposition, 905 F.2d 1540 (9th Cir. 1990)

MEMORANDUM^** 

Corvin Charles Emdy appeals pro se the district court's order dismissing his petition for a writ of habeas corpus. We review decisions denying writs of habeas corpus de novo. Weinstein v. United States Parole Commission, No. 89-55872, slip op. 4673, 4678 (9th Cir. May 11, 1990).

Emdy makes two arguments in this appeal. First, he argues that the Parole Commission inaccurately determined the time he must serve before parole by classifying his offense as a category seven offense instead of a category six offense. See 28 C.F.R. Sec. 2.20. Our review of Parole Commission decisions is "narrowly limited to acts outside the Commission's statutory authority, decisions rendered outside its guidelines without a showing of good cause, and constitutional matters." Feldman v. Perrill, No. 88-15237, slip op. 4687, 4695 (9th Cir. May 11, 1990).

The guidelines provide that an offense should be graded as category six when "bodily injury results or a weapon is fired by any offender." 28 C.F.R. 2.20, Chapter 2, Subchapter B, Section 211(b). The offense should be graded as category seven when "serious bodily injury results or if serious bodily injury is the result intended." Id. at 211(a). Serious bodily injury is the result intended when "the circumstances indicate that the bodily injury intended was serious (e.g., throwing acid in a person's face, or firing a weapon at a person) but where it is not established that murder was the intended object." Id., Chapter 13, Subchapter B, Section 17.

The Parole Commission decided that the circumstances of Emdy's offense, firing a weapon at a teller during a bank robbery, indicated that Emdy intended serious bodily injury within the meaning of 28 C.F.R. Sec. 2.20, Chapter 13, Subchapter B, Section 17. We cannot say that the Commission's finding is outside its statutory authority or outside its guidelines.

Emdy argues that his hair trigger pistol discharged by accident and that he did not intend serious bodily injury. We are without jurisdiction to review whether the Commission properly inferred intent from Emdy's conduct. That factual determination is "just the sort of judgment that is absolutely committed to the discretion of the Parole Commission." Roberts v. Corrothers, 812 F.2d 1173, 1179 (9th Cir. 1987).

Emdy's second argument is that the Parole Commission incorrectly classified an incident in which he set his prison bedding on fire as the destruction of government property in violation of 18 U.S.C. § 1361 instead of classifying the incident as an administrative rule infraction. Emdy does not argue that the Commission's decision does not conform with statutes or the guidelines.¹  He contends that the incident could be characterized as a rule infraction. Once again, Emdy challenges a discretionary Commission determination not subject to review.

In addition to challenging the Commission's exercise of discretion, Emdy argues that the Commission vindictively classified the bedding burning incident as the destruction of government property in violation of the due process clause of the fifth amendment. See Weinstein, No. 89-55872, slip op. at 4684. In Weinstein we noted that when the Commission sets a release date outside the guidelines after a successful habeas petition, it can create an appearance of vindictiveness. Here, however, the Commission did not depart from the guidelines when it set Emdy's release date. Moreover, summary judgment is proper because Emdy has failed "to make a showing sufficient to establish the existence of" vindictiveness. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

The decision of the district court dismissing Emdy's petition for a writ of habeas corpus is

AFFIRMED.