                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAY 26 2000
                                  TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 LAWRENCE ANDREW AZURE,

          Petitioner-Appellant,
                                                        No. 99-1433
 v.
                                                    (D.C. No. 98-K-1682)
                                                    (District of Colorado)
 MICHAEL V. PUGH,

          Respondent-Appellee.


                            ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, EBEL and BRISCOE, Circuit Judges.



      Proceeding pro se, Petitioner-Appellant Lawrence Andrew Azure appeals

the district court’s dismissal of his petition for a writ of habeas corpus under 28

U.S.C. § 2241. We affirm.

      While Mr. Azure was on parole from a sentence for second degree murder,

his probation officer reported possible parole violations to the Parole


      *
        After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. This
Order and Judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be
cited under the terms and conditions of 10th Cir. R. 36.3.
Commission. On April 26, 1996, the Parole Commission issued a warrant. After

a parole revocation hearing on August 24, 1996, the Parole Commission revoked

Azure’s parole based on his use of alcoholic beverages and his association with a

person having a criminal record/engaged in criminal activity. On September 24,

1996, Azure was reparoled.

      On January 17, 1997, Azure’s probation officer again reported parole

violations to the Parole Commission after Azure was charged with assaulting his

nephew. The Parole Commission issued a warrant charging Azure with assault. 1

Azure was held in local custody and then released to the Parole Commission’s

warrant on March 11, 1997. Local authorities did not prosecute Azure for the

assault because the victim was uncooperative. Azure’s probation officer

discussed the matter with the victim, who stated that Azure had beaten him, but

that he did not want to be responsible for sending Azure back to prison. The

regional commissioner determined that there was probable cause to proceed to a

revocation hearing.

      The victim, the victim’s mother, and two police officers testified at the

June 11, 1997 revocation hearing. Azure, represented by counsel, also testified.

The hearing examiner determined that a finding could be made based upon a




      The Parole Commission subsequently supplemented the warrant with a
      1

second charge, use of alcohol.

                                        -2-
preponderance of the evidence that Azure assaulted his nephew and was drunk

during the incident. The hearing examiner stated that Azure’s offense was rated

category five because it involved an assault with bodily injury. Azure’s

guidelines were calculated as forty-eight to sixty months. The examiner

determined that Azure has a history of domestic violence and is capable of

becoming extremely dangerous during domestic disagreements. He recommended

service of forty-eight months. A second examiner recommended that Azure serve

sixty months and participate in the Bureau of Prisons 500-hour program for

substance abusers. The regional commissioner agreed with the second examiner’s

recommendation. By a notice of action dated July 2, 1997, Azure was advised

that his parole was revoked, that he was continued to a presumptive parole date of

March 10, 2002, after the service of sixty months, 2 and that he was required to

participate in a community-based program for alcohol treatment.

      Azure’s court-appointed attorney appealed from the regional

commissioner’s decision. The attorney informed the Parole Commission that he

was unable to consult with Azure regarding the appeal because Azure had been

moved to another facility. The attorney told the Commission that if Azure

submitted his own appeal, the attorney’s appeal should be disregarded. On



      2
       This date was later changed to January 16, 2002, to give Azure credit for
the time he served in state custody.

                                        -3-
November 4, 1997, the National Appeals Board, having received no other appeal

in Azure’s case, ruled on the appeal submitted by Azure’s attorney. The National

Appeals Board found the claims in the appeal to be meritless, and affirmed the

Parole Commission’s decision.

      On March 27, 1998, the Parole Commission received Azure’s appeal from

the July 2, 1997, decision. 3 The appeal raised two claims previously raised by his

attorney and three claims not previously raised. The Parole Commission advised

Azure that the National Appeals Board had already made a determination and that

the Board’s final decision was not appealable.

      In his § 2241 habeas petition, Azure argued the following: (1) that the

Parole Commission failed to respond to his second appeal and address the issues

he raised; (2) that the Parole Commission applied incorrect guidelines to his

offense behavior and that the evidence did not support the Parole Commission’s

findings; (3) that his time in custody was computed incorrectly and that he failed

to receive credit against his sentence for time spent in state custody; (4) that the

Parole Commission allegedly failed to follow correct procedures for issuance and


      3
       On January 5, 1998, the Parole Commission received from Azure a letter
dated December 29, 1997, stating that he had not received a copy of the tape
recording of his hearing, which he had requested on November 17, 1997. The
Parole Commission had sent the tape recording on December 19, 1997, but sent a
second copy on January 15, 1998. In the January 5, 1998 letter, Azure also
enclosed a copy of an October 15, 1998 letter in which he asked for an extension
of time to submit an appeal. That letter was not in Azure’s file.

                                         -4-
execution of the warrant; and (5) that the Parole Commission allegedly violated

18 U.S.C. § 4208(b)(2) (repealed effective Nov. 1, 1997) (Supp. 1999), by failing

to provide him with disclosure of the evidence thirty days in advance of the

hearing, which denied him the opportunity to have witnesses present. The district

court issued a Memorandum Opinion and Order thoroughly discussing each of the

issues. The district court concluded that the claims not raised by Azure’s attorney

before the National Appeals Board were procedurally barred, and that even if they

were not procedurally barred, they were without merit. With respect to Azure’s

claim that he had mailed a request for an extension of time in which to appeal to

the Parole Commission on October 15, 1997, see supra note 3, the district court

stated that even if the Parole Commission received the request, it was not made

within the time allowed for appeal. 4 Finding the remaining claims without merit,

the district court denied Azure’s habeas petition.

      We review de novo the district court's denial of a habeas petition. See

Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir.1996). We have carefully

reviewed the district court’s decision, petitioner’s brief, and the record on appeal.

We find no error or omission in the district court’s September 7, 1999 decision,

and we affirm for substantially the same reasons set forth in that order.




      Pursuant to 28 C.F.R. § 2.26 (1999), Azure had thirty days from the July 2,
      4

1997 decision of the to revoke his parole.

                                         -5-
Regarding Azure’s additional claim on appeal that the district court erred in

denying his request for legal counsel, we find that claim is also without merit.

“[T]here is no constitutional right to counsel beyond the appeal of a criminal

conviction and . . . generally appointment of counsel in a [habeas] proceeding is

left to the court’s discretion.” Swazo v. Wyoming Dep’t of Corrections State

Penitentiary Warden, 23 F.3d 332, 333 (10th Cir. 1994). Although there is a right

to counsel in a habeas case when the district court determines that an evidentiary

hearing is required, see Swazo, 23 F.3d at 333, an evidentiary hearing was not

required in this case and the district court correctly exercised its discretion in not

appointing counsel.

      We DENY Mr. Azure’s petition and DISMISS his appeal. We also DENY

Azure’s motion to proceed in forma pauperis on appeal because he fails to present

a reasoned, nonfrivolous argument on the law or merits for bringing the present

petition.


                                        ENTERED FOR THE COURT


                                        David M. Ebel
                                        Circuit Judge




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