                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           DEC 11 2002
                                   TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                 Clerk

DAVID SALVADOR COTA,

              Petitioner - Appellant,

       v.                                                 No. 02-1256
                                                   D.C. No. 01-WM-398 (PAC)
MICHAEL PUGH, Warden;                                    (D. Colorado)
COMMISSIONER DWYER; UNITED
STATES PAROLE COMMISSION,

              Respondents - Appellees.


                                ORDER AND JUDGMENT        *




Before SEYMOUR , HENRY , and BRISCOE , Circuit Judges.



       After examining the briefs 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)(C). The case is

therefore submitted without oral argument.




       *
        This order and judgment is not binding precedent, except under the
doctrines of res judicata, collateral estoppel, and law of the case. 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.
      David Salvador Cota, proceeding pro se, seeks to (1) appeal the district

court’s order denying his petition for a writ of habeas corpus pursuant to 28

U.S.C. § 2241 and (2) proceed in forma pauperis. Mr. Cota alleges that the

United States Parole Commission violated his due process rights by erroneously

interpreting its regulations to allow the application of the parole rescission

guidelines set forth in 28 C.F.R. § 2.36 without first establishing a presumptive or

effective date of parole. Mr. Cota also argues that the Commission failed to

follow the procedures set forth in another regulation, 28 C.F.R. § 2.34 and that

the Commission improperly relied upon sealed documents.

      We grant Mr. Cota’s motion to proceed in forma pauperis. However,

because the Parole Commission did not act arbitrarily or capriciously in

interpreting the rescission guidelines, and because Mr. Cota has failed to offer

evidentiary support for his other arguments, we affirm the district court’s decision

denying Mr. Cota’s § 2241 petition.



                               I. BACKGROUND

      In 1986, Mr. Cota was convicted in a federal district court of (1) robbery of

a savings and loan association and (2) using and carrying a firearm during a crime

of violence, violations of 18 U.S.C. §§ 2113 and 924(c) respectively. He received

consecutive twenty-five and five-year sentences.


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      During his incarceration, Mr. Cota attempted to escape. He was charged

and convicted of that offense and received an additional, consecutive two-year

term of imprisonment.

      In September 2000, a Parole Commission hearing examiner conducted an

initial parole hearing for Mr. Cota. The hearing examiner concluded that Mr.

Cota should not be paroled and recommended that his incarceration continue until

the end of his sentence. A second hearing examiner concurred with that

recommendation.

      In reaching this conclusion, the hearing examiners relied on Mr. Cota’s

admission that he had been involved in twelve bank robberies (only two of which

had resulted in criminal convictions). The examiners also found that Mr. Cota

had received eighty-five prison disciplinary convictions during his incarceration,

only one of which was without merit.

      After noting Mr. Cota’s conduct during his incarceration, the examiners

applied the parole rescission guidelines set forth in 28 C.F.R. § 2.36. Those

guidelines set forth periods of time to be added to a prisoner’s period of

incarceration when the prisoner violates disciplinary rules or engages in criminal

conduct. Section 2.36 provides in part:

             The following guidelines shall apply to the sanctioning of
             disciplinary infractions or new criminal conduct committed
             by a prisoner during any period of confinement that is
             credited to his current sentence (whether before or after

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             sentence is imposed), but prior to his release on parole;
             and by a parole violator during any period of confinement
             prior to or following the revocation of his parole (except
             when such period of confinement has resulted from initial
             parole to a detainer). These guidelines specify the
             customary time to be served for such behavior which shall
             be added to the time required by the original presumptive
             or effective date.

28 C.F.R. § 2.36(a). Applying the § 2.36 guidelines to Mr. Cota’s conduct, the

examiners found a “severity rating” of seven and an aggregate guideline range of

158 to 482 months.   1
                         Aplee’s Br. at A-101.

      In October 2000, the Parole Commission issued a decision adopting the

hearing examiners’ recommendation. The Commission cited: (1) four incidents of

criminal conduct in a prison facility by Mr. Cota involving possession of a

weapon and assault; (2) Mr. Cota’s attempt to escape; (3) rescission behavior; and

(4) eighteen drug-related disciplinary infractions and fifty-eight other infractions.

See id.

      Mr. Cota filed an appeal with the National Appeals Board. In April 2001,

the Board issued a decision affirming the decision of the Parole Commission.      See

id. at A-102-103. The Board specifically rejected Mr. Cota’s argument that the

Commission had erred in applying the rescission guidelines set forth in § 2.36.


      1
         As the district court noted, the aggregate parole guideline range is “the
customary range of time to be served before release for various combinations of
offense (severity) and offender (parole prognosis) characteristics.” 28 C.F.R. §
220(b).

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        In February 2001, Mr. Cota filed the instant § 2241 petition in the federal

district court. A magistrate judge recommended the denial of Mr. Cota’s

petition. The district court adopted the magistrate’s recommendation and denied

Mr. Cota’s § 2241 petition.



                                        II. DISCUSSION

       On appeal, Mr. Cota advances three arguments. First, he argues that the

Parole Commission violated his due process rights by applying the rescission

guidelines set forth in 28 C.F.R. § 2.36 without first establishing a presumptive or

effective parole date. Second, Mr. Cota argues that “none of the procedures set

forth in 28 C.F.R. § 2.34 were satisfied in the application of the ‘rescission

guidelines.’” See Aplt’s Br. at 2. Finally, Mr. Cota contends that the respondents

“submitted documents under seal, and denied Petitioner’s motion for

App[ointmen]t of Counsel to respond to documents[] which Petitioner was not

allowed to see.”   Id. at 4.

       We review the Parole Commission’s decisions to determine whether there is

a rational basis for its conclusions.     Misasi v. United States Parole Comm’n   , 835

F.2d 754, 758 (10th Cir. 1987) (“‘The inquiry is not whether the 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


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Commission’s conclusions embodied in its statement of reasons.’”) (quoting

Solomon v. Elsea , 676 F.2d 282, 290 (7th Cir. 1982)). Accordingly, we may not

overturn the Commission’s decision “unless there is a clear showing of arbitrary

and capricious action or an abuse of discretion.”       Kell v. United States Parole

Comm’n , 26 F.3d 1016, 1019 (10th Cir. 1994) (internal quotation marks omitted).

We afford “some deference” to the Parole Commission’s interpretation of its own

regulations. Sotelo v. Hadden , 721 F.2d 700, 702 (10th Cir. 1983).



                      A. Application of the Recisions Guidelines

       Mr. Cota’s challenge to the application of the rescission guidelines is based

upon the language in § 2.36 that explains that the rescission guidelines “specify

the customary time to be served for such behavior [disciplinary infractions or

new criminal behavior during incarceration]         which shall be added to the time

required by the original or presumptive or effective date      .” 28 C.F.R. § 2.36(a)

(emphasis added). Mr. Cota contends that because the Commission had not yet

established a presumptive or effective parole date for him, the Commission could

not apply the rescission guidelines. In light of other regulations that vest the

Parole Commission and its hearing examiners with discretion to consider a broad

range of factors at initial parole hearings—including the rescission guidelines

themselves—we do not read this language to exclude the action taken here.


                                            -6-
       In particular, under 28 C.F.R. § 2.13(a), the Parole Commission’s hearing

examiners must consider a prisoner’s “offense severity rating and salient factor

score . . . as described in § 2.20.” Section 2.20 provides that at the initial

hearing, the examiners may consider “especially mitigating or aggravating

circumstances” even though those circumstances are not themselves listed in the

guidelines. See 28 C.F.R. § 2.20(d). Morever, when a prisoner has committed

new criminal conduct while incarcerated, § 2.20 directs the hearing examiner

conducting the initial parole hearing to consider the rescission guidelines.     See 28

C.F.R. § 2.20(i) (stating that “[f]or criminal behavior committed while in

confinement see § 2.36 (Rescission Guidelines”)).

       In our view, these provisions indicate that, when conducting an initial

parole hearing, the Commission and its hearing examiners are not foreclosed

from considering the rescission guidelines governing a prisoner’s new criminal

conduct and disciplinary infractions. The fact that § 2.36 explains that the

rescission guidelines “specify the customary time to be . . . added to the time

required by the original presumptive or effective [parole] date” merely indicates

that this particular regulation was drafted with the expectation that the typical

case involving the rescission guidelines would be one in which a presumptive or

effective parole date had already been set. That language does not override the




                                            -7-
other regulations that vest the Commission and its examiners with discretion to

consider the rescission guidelines at initial parole hearings, as they did here.



                            B. Mr. Cota’s other arguments

      Mr. Cota’s other arguments are similarly unpersuasive. He contends that

the Commission failed to follow the procedures set forth in 28 C.F.R. § 2.34.      2



However, those procedures apply only when an effective date of parole has been

set and the Commission seeks to rescind that date. That is not the case here.

Moreover, other than the application of the rescission guidelines discussed above,

Mr. Cota has not explained which applicable procedure requirements the

Commission and its examiners failed to follow and he has failed to offer evidence

to support these allegations.

      Finally, Mr. Cota’s complaint that the Commission and the examiners

improperly relied upon sealed documents is undercut by the respondents’

explanation that the sealed documents in question were presentence reports that




      2
         Section 2.34 sets forth specific requirements regarding notice to the
prisoner and the opportunity for a hearing “[w]hen an effective date of parole has
been set by the Commission”and when “a prisoner granted such a date has been
found in violation of institutional rules by a disciplinary hearing officer or is
alleged to have committed a new criminal act at any time prior to the delivery of
the certificate of parole.” 28 C.F.R. § 2.34(a).

                                           -8-
Mr. Cota had had an opportunity to review at prior proceedings.     See Aplee’s Br.

at 9. Mr. Cota has failed to rebut this explanation.



                                 III. CONCLUSION

      Accordingly, we GRANT Mr. Cota’s motion to proceed in forma pauperis,

and we AFFIRM the district court’s denial of Mr. Cota’s petition for a writ of

habeas corpus under 28 U.S.C. § 2241.

                                                Entered for the Court


                                                Robert H. Henry
                                                Circuit Judge




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