Noe Martinez, Petitioner-appellant, v. John Gluch; United States Parole Commission, Respondents-appellees, 958 F.2d 371 (6th Cir. 1992)

Annotate this Case
US Court of Appeals for the Sixth Circuit - 958 F.2d 371 (6th Cir. 1992)

March 24, 1992


Before RALPH B. GUY, Jr. and DAVID A. NELSON, Circuit Judges, and REAVLEY, Senior Circuit Judge.* 


ORDER

Noe Martinez, a pro se federal prisoner, appeals a district court order denying his petition for a writ of habeas corpus filed under 28 U.S.C. § 2241. This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

A federal jury in New York convicted Martinez in 1988 on a charge of attempting to distribute and possessing with the intent to distribute heroin for which he received a six year sentence. Martinez was given an initial parole hearing before the United States Parole Commission on November 1, 1989. On November 16, 1989, the Commission advised Martinez that he would be presumptively eligible for parole after the service of 45 months of his sentence (April 19, 1992). Martinez appealed to the National Appeals Board which affirmed the Commission's decision on February 22, 1990.

Martinez then petitioned for a writ of habeas corpus under 28 U.S.C. § 2241, contending that the Commission improperly determined his parole eligibility date. The petition was referred to a magistrate judge who recommended the petition be denied. Over Martinez's objection, the district court adopted the magistrate judge's report. Martinez filed this timely appeal raising the same issue he presented to the district court.

The review of a U.S. Parole Commission decision is limited to a determination of whether a rational basis exists for the Commission's conclusions. Hackett v. United States Parole Comm'n, 851 F.2d 127, 129-30 (6th Cir. 1987) (per curiam). Neither the Commission's findings of fact nor credibility determinations are subject to review. Farkas v. United States, 744 F.2d 37, 38-39 (6th Cir. 1984).

Upon review, we conclude that the district court properly dismissed Martinez's petition for the reasons set forth in the magistrate judge's report filed on June 25, 1991, and as adopted by the district court in its order filed on July 31, 1991.

Accordingly, we affirm the district court's judgment. Rule 9(b) (3), Rules of the Sixth Circuit.

 *

The Honorable Thomas M. Reavley, Senior Circuit Judge, United States Court of Appeals for the Fifth Circuit, sitting by designation