                                                                           FILED
                             NOT FOR PUBLICATION                            JAN 07 2010

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



 BRENT STEVEN SHERMAN, Sr.,                      No. 07-35337

               Petitioner - Appellant,           D.C. No. CV-05-01252-OMP

   v.
                                                 MEMORANDUM *
 EDWARD F. REILLY, Jr., chairman;
 et al.,

               Respondents - Appellees.




                     Appeal from the United States District Court
                              for the District of Oregon
                      Owen M. Panner, District Judge, Presiding

                           Submitted December 15, 2009 **

Before:        GOODWIN, WALLACE, and FISHER, Circuit Judges.

        Federal prisoner Brent Steven Sherman, Sr. appeals pro se from the district

court’s judgment dismissing his 28 U.S.C. § 2241 habeas petition. Sherman

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

EG/Research
challenges his parole revocation on due process and Fourth Amendment grounds.

The stay of this case, entered on August 6, 2009, is lifted. Sherman’s motion for

prompt resolution of this appeal, filed July 6, 2009, is granted. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

       First, Sherman contends that his due process rights were violated by the

Parole Commission’s delay in issuing a parole violator warrant. Because Sherman

failed to establish the requisite prejudice, see Meador v. Knowles, 990 F.2d 503,

506 (9th Cir. 1993), this claim is without merit.

       Second, Sherman contends that his due process rights were violated because

his parole officer allegedly lied at the revocation hearing. Because Sherman had an

opportunity to cross-examine the officer at the hearing, his due process rights were

not violated. See Morrisey v. Brewer, 408 U.S. 471, 489 (1972) (stating that

minimal due process protections applicable to parole revocation hearing include

right to confront and cross-examine adverse witnesses).

       Third, Sherman contends that his parole violator warrant was not supported

by probable cause and hence violated the Fourth Amendment. We rejected this

argument in Sherman v. United States Parole Commission, 502 F.3d 869, 884 (9th

Cir. 2007) (holding that “the Fourth Amendment does not require an administrative

parole violator warrant to be supported by oath or affirmation”).


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       Fourth, Sherman contends that the Parole Commission violated his due

process rights by holding a second revocation hearing seven months after the first

hearing. The district court’s finding that the Commission did not initiate a new

hearing, but rather continued the original hearing, is not clearly erroneous.

       Fifth, and relatedly, Sherman contends that this seven-month delay violated

his due process rights. Because Sherman failed to establish the requisite prejudice,

Vargas v. United States Parole Comm’n, 865 F.2d 191, 194 (9th Cir. 1988), this

claim is without merit.

       Sixth, Sherman contends that the revocation proceedings violated due

process because the Commission failed to prove fraudulent intent beyond a

reasonable doubt. The hearing examiner’s application of the preponderance

standard was proper. See Standlee v. Rhay, 557 F.2d 1303, 1307 (9th Cir. 1977).

Furthermore, the Commission’s discretionary determination to revoke parole based

on this charge was not so arbitrary or capricious as to violate due process. See

Benny v. United States Parole Comm’n, 295 F.3d 977, 981-82 (9th Cir. 2002)

(stating that Court’s jurisdiction to review Parole Commission’s discretionary

determinations is limited).

       Seventh, Sherman contends that his due process rights were violated because

the hearing examiner revised his fraud loss calculation, resulting in an increased


EG/Research                                3                                    07-35337
severity rating and longer recommended revocation sentence, only after the

hearing. Sherman received notice of the basis for the determination and exercised

his opportunity to appeal the determination administratively. Accordingly, this

claim fails. See Bowles v. Tennant, 613 F.2d 776, 779 (9th Cir. 1980) (no due

process violation where prospective parolee was only informed of basis for

severity rating in notice of action after hearing but had opportunity to appeal

administratively).

       Eighth, Sherman contends that he was entitled to immediate termination of

parole supervision under 18 U.S.C. § 4211(c)(1) because his combined early

termination and parole revocation hearing was not held within five years of his

release on parole. This argument is foreclosed by Benny, 295 F.3d at 982-985

(holding that failure to hold early termination hearing within five years as required

under § 4211(c)(1) entitles parolee to considered decision on termination, not

immediate termination of parole supervision).

       Finally, Sherman contends that the district court abused its discretion by not

individually addressing each of his pending motions and requests. The district

court acted within its discretionary powers in dismissing as moot Sherman’s

pending motions and requests.

       AFFIRMED.


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