                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 15 2010

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




                            FOR THE NINTH CIRCUIT



TERRY PAUL HEDIN,                                No. 08-35653

              Petitioner - Appellant,            D.C. No. 3:07-cv-01800-MO

  v.
                                                 MEMORANDUM *
CHARLES DANIELS, Warden and J. E.
THOMAS,

              Respondents - Appellees.



                   Appeal from the United States District Court
                            for the District of Oregon
                   Michael W. Mosman, District Judge, Presiding

                             Submitted July 13, 2010 **
                                Portland, Oregon

Before: GOODWIN, PREGERSON and WARDLAW, Circuit Judges.

       Terry Paul Hedin appeals the denial of his 28 U.S.C. § 2241 habeas corpus

petition claiming due process violations by the United States Parole Commission

(“the Commission”). Hedin contends that the Commission improperly double-

        *
             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).
counted a prior offense, that it failed to consider mitigating evidence and to follow

its own rules and regulations, and that its actions trigger the presumption of

vindictiveness. We affirm.

      We review the district court’s denial of Hedin’s petition de novo. See Benny

v. U.S. Parole Comm’n, 295 F.3d 977, 981 (9th Cir. 2002). In reviewing the

Commission’s decisions, however, we determine only “whether the Commission

exceeded its statutory authority or acted so arbitrarily as to violate due process.”

Id. “Judgments ‘involving a broad range of factors’ that the Commission takes

into account in arriving at its decision are committed to the Commission’s

discretion and are unreviewable even for abuse of discretion.” Id. at 982 (quoting

Wallace v. Christensen, 802 F.2d 1539, 1551-52 (9th Cir. 1986) (en banc)).

      First, Hedin argues that the Commission improperly double-counted his

offense conduct by using it both to calculate the offense category and to justify a

decision exceeding the guideline category. Our circuit has not definitively

determined whether such double-counting is permissible. See Coleman v. Perrill,

845 F.2d 876, 879 (9th Cir. 1988) (noting that we have stated in dicta that we will

permit double-counting in some circumstances, but have suggested disapproval for

it in others). We need not reach that question, however, because the Commission

did not engage in double-counting. Rather, in calculating the offense category, it


                                           2
relied on its determination that Hedin’s offense involved attempted murder, and in

justifying a decision exceeding the guideline category, it relied on the aggravating

factor of “serious and violent conduct, committed very soon after release on parole

for other serious and violent conduct.” That “serious and violent conduct”

consisted of a string of robberies, one of which involved attempted murder,

committed soon after Hedin’s release on parole for two prior murder convictions.

The Commission therefore justified its decision to exceed the guideline category

not because a prior offense involved attempted murder, but because of the history

and chronology of Hedin’s prior conduct.

      Second, Hedin contends that the Commission failed to consider mitigating

evidence. That evidence, however, was available to the Commission, and “[w]e

cannot presume that the Commission ignored the information favorable to [the

petitioner].” Nunez-Guardado v. Hadden, 722 F.2d 618, 621 (9th Cir. 1983). The

district court therefore properly concluded that the weight accorded mitigating

factors is unreviewable and within the Commission’s discretion.

      Third, Hedin argues that the Commission violated its own rules and

regulations, first, by allowing high-level executive staff, including an executive

hearings examiner, to make parole decisions rather than following the

recommendation of the hearing examiners; and, second, by failing to invalidate the


                                          3
December 22, 2006, Notice of Action (“NOA”) because it had the assent of only

one commissioner. Hedin’s first argument fails, however, because absent an order

directing otherwise, executive hearings examiners function as hearings examiners

for purposes of obtaining a panel recommendation, 28 C.F.R. § 2.23(a), and

hearings examiners’ recommendations are non-binding and become effective only

upon approval of a regional commissioner, 28 C.F.R. § 2.23(d). His second fails

because the Commission corrected the error by referring the case to a second

commissioner for review, thereby conforming with the governing regulations. See

C.F.R. § 2.24(a) (requiring the vote of two commissioners if the decision does not

concur with the examiners’ recommendation). The Commission therefore acted

within its discretion.

      Finally, Hedin contends that the Commission’s actions trigger the

presumption of vindictiveness because he received a harsher sentence after

appealing its initial decision. The presumption of vindictiveness applies when a

judge imposes a more severe sentence on retrial. Alabama v. Smith, 490 U.S. 794,

798-99 (1989); see also Bono v. Benov, 197 F.3d 409, 416-19 (9th Cir. 1999)

(applying this rationale to parole decisions). The presumption does not apply here,

however, because the Commission issued only one final decision. The National

Appeals Board withdrew the first NOA, dated June 29, 2005, because it failed to


                                         4
comply with 28 C.F.R. § 2.24(a), and the second, dated December 20, 2005,

because it failed to comply with 28 C.F.R. § 2.14(c). Only the NOA dated

December 22, 2006, was affirmed and became a final decision. The presumption

therefore does not apply.

      AFFIRMED.




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