Unpublished Disposition, 930 F.2d 28 (9th Cir. 1987)

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US Court of Appeals for the Ninth Circuit - 930 F.2d 28 (9th Cir. 1987)

Howard L. McDANIEL, Petitioner-Appellant,v.Kenneth W. DUCHARME, et al., Respondents-Appellees.

No. 89-35519.

United States Court of Appeals, Ninth Circuit.

Submitted March 20, 1991.* Decided April 1, 1991.

Before K.K. HALL, DAVID R. THOMPSON and RYMER, Circuit Judges.


Howard L. McDaniel, a federal prisoner, appeals the district court's denial of his 28 U.S.C. § 2241 habeas petition. McDaniel contends that the United States Parole Commission (USPC) violated his right to due process by (1) basing its parole determination on information contained in a letter from the Drug Enforcement Administration (DEA) that was not contained in his presentence report and had not been tested through any adjudicative procedures, and (2) failing to make the DEA letter reasonably accessible to him thirty days before his parole hearing, as required by 18 U.S.C. § 4208(b). We review de novo, Camacho v. White, 918 F.2d 74, 77 (9th Cir. 1990), and we affirm.

Our review of parole decisions is limited to determining whether the USPC "has acted outside its statutory authority or has committed a constitutional violation, but we may not review any decision involving the 'exercise of judgment among a range of possible choices or options.' " Vargas v. United States Parole Comm'n, 865 F.2d 191, 193 (9th Cir. 1988) (quoting Wallace v. Christensen, 802 F.2d 1539, 1552 (9th Cir. 1986) (en banc)). Within this unreviewable area are those judgments integral to individual parole decisions, including the nature of the offense and the history of the prisoner. Roberts v. Corrothers, 812 F.2d 1173, 1176 (9th Cir. 1987). Moreover, the USPC may consider information that does not meet the evidentiary standards required at trial, and this court lacks jurisdiction to review the reliability of the sources of such information. Walker v. United States, 816 F.2d 1313, 1317 (9th Cir. 1987).

Here, the USPC based its parole decision on both McDaniel's admission that he had been a drug dealer for 4-5 years and on information obtained from the DEA regarding the quantity of drugs McDaniel had distributed. Thus, the USPC acted within its statutory authority by considering this information in setting McDaniel's presumptive parole date. See Roberts, 812 F.2d at 1179-80 (the evaluation of evidence properly before the USPC is left almost entirely to its discretion); 18 U.S.C. § 4207 (USPC may consider any "relevant information concerning the prisoner (including information submitted by the prisoner) as may be reasonably available"). Moreover, the reliability of the DEA's information is left to the USPC's discretion and is beyond the scope of this court's review. See Walker, 816 F.2d at 1317.

Finally, although McDaniel did not have reasonable access to the DEA letter before his first parole hearing on February 10, 1987, he was given a second hearing on October 21, 1987. During the first hearing, the hearing examiners read the DEA letter to McDaniel and discussed its contents with him. Thus, McDaniel was notified of the information provided by the DEA at his first hearing, and he was provided with an opportunity to be heard regarding this information at his second hearing.1  Therefore, McDaniel was not denied due process. Accordingly, the district court properly denied McDaniel's habeas petition.



The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 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


At the second hearing, McDaniel did not provide any new information to refute the DEA's statements, he waived his right to have a representative at the hearing, and he waived his right to a second review of his prison file, which he had reviewed before the first hearing