                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              JUN 22 1998
                                TENTH CIRCUIT
                           __________________________                    PATRICK FISHER
                                                                                  Clerk

 HOWARD PHILLIPS,

          Petitioner-Appellant,

 v.                                                        No. 98-3025
                                                            (D. Kan.)
 PAGE TRUE, Warden; U.S. PAROLE                      (D.Ct. No. 95-CV-3465)
 COMMISSION,

          Respondents-Appellees.


                            ORDER AND JUDGMENT *


Before SEYMOUR, BRORBY, and BRISCOE, Circuit Judges.



      After examining the briefs and 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); 10th Cir. R. 34.1.9. 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          This order and judgment is not binding precedent except under the doctrines of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.
      Mr. Phillips is a federal inmate and a pro se litigant. He filed a petition for

a writ of habeas corpus under 28 U.S.C. §2241. The district court dismissed his

petition and Mr. Phillips appeals. We affirm the judgment of the district court.



      In 1987, Mr. Phillips was sentenced in the United States District Court for

the Eastern District of Wisconsin to a term of twenty years imprisonment for

aiding and abetting a bank robbery committed with a dangerous weapon. He was

paroled in December 1993.



      In March 1994, the Parole Commission issued a violator warrant for Mr.

Phillips pursuant to his reported arrest on state charges of second degree reckless

injury while armed, second degree recklessly endangering safety while armed, and

possession of a firearm by a felon. The state charges arose from an incident in

which Mr. Phillips allegedly fired a handgun during a domestic argument between

his brother and sister-in-law. At least one bullet struck Mr. Phillips’ two-year-old

niece, causing serious injuries. The Parole Commission later added a charge of

unauthorized use of dangerous drugs.



      A parole revocation hearing was held in April and continued to August

1994. At this revocation hearing, Mr. Phillips’ brother testified that Mr. Phillips


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fired several shots into the air during an argument and then fled after it was

discovered his niece had been struck by a bullet. Mr. Phillips’ sister-in-law gave

testimony corroborating these statements. Other testimony was admitted by

affidavit which exonerated Mr. Phillips. The Parole Commission chose to credit

the testimony that was adverse to Mr. Phillips and, in September 1994, revoked

his parole, granted credit for the time spent on parole, and continued Mr. Phillips

in confinement to the expiration of his sentence, less good time. The National

Appeals Board subsequently affirmed the Commission’s ruling.



      In December 1994, Mr. Phillips was acquitted of all state charges relating

to the shooting of his niece. He then sought either reinstatement to parole or a

rehearing. The Commission reopened the case and took additional evidence. The

Parole Commission did not change its decision. The National Appeals Board

again upheld the Commission’s decision.



      The district court concluded Mr. Phillips’ “acquittal of state criminal

charges does not require the Parole Commission to ignore the underlying conduct

if it is supported by reasonable grounds.” The district court reviewed the record

and cited the evidence supporting the Parole Commission’s decision. The district

court concluded “the Commission’s decision is well-supported by the record and


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... petitioner is entitled to no relief.”



       Mr. Phillips appeals, stating the issues as: (1) “Whether Parole

Commission used erroneous information to revoke Petitioner’s Parole”; and (2)

“Abuse of Discretionary Power of the District Court.” The gist of Mr. Phillips’

first argument is that the testimony of his brother and sister-in-law was “largely

self-serving and [was] rebutted by ... live testimony at the re-hearing.” Mr.

Phillips also complains of the delay following the filing of his habeas petition

with the district court and notes he filed for a writ of mandamus with this court

requiring the district court to proceed. He asserts his petition for habeas relief

“has been reduced to a sham, because the trial court has not acted within

reasonable time.”



       We have jurisdiction under 28 U.S.C. § 1291. We review the district

court’s decision to deny habeas relief de novo. Sinclair v. Henman, 986 F.2d 407,

408 (10th Cir.), cert. denied, 510 U.S. 842 (1993). Our case law holds that the

Parole Commission’s decision to grant or revoke parole will be reversed only if it

is arbitrary, capricious or constitutes an abuse of discretion. See Kell v. United

States Parole Comm’n, 26 F.3d 1016, 1019 (10th Cir. 1994); Turner v. United

States Parole Comm’n, 934 F.2d 254, 256 (10th Cir.), cert. denied, 502 U.S. 885


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(1991). Our inquiry is not whether the Parole Commission’s decision is

“‘supported by the preponderance of the evidence, or even by substantial

evidence; the inquiry is only whether there is a rational basis in the record for the

Commission’s conclusions embodied in its statement of reasons.’” Misasi v.

United States Parole Comm’n, 835 F.2d 754, 758 (10th Cir. 1987) (quoting

Soloman v. Elsea, 676 F.2d 282, 290 (7th Circuit 1982)). We cannot act as the

judges of the credibility of witnesses. See Fiumara v. O’Brien, 889 F.2d 254, 257

(10th Cir.) (“Appeal courts may not reweigh evidence, repass on the credibility of

reports, or substitute their judgment for that of the Commission.”), cert. denied,

495 U.S. 958 (1990).



      The record contains evidence fully supporting the Commission’s decision.

Clearly, there is a rational basis in the record for the Commission’s conclusions.

While it is true there is contrary evidence in the record, which, if believed would

operate in favor of Mr. Phillips, we do not have the power to assess the credibility

of the witnesses. As to his second claim, Mr. Phillips has failed to show his case

was prejudiced by the district court’s delay. For these reasons, Mr. Phillips’

arguments lack merit and we AFFIRM the decision of the district court.

                                        Entered by the Court:

                                        WADE BRORBY
                                        United States Circuit Judge

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