                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
               UNITED STATES COURT OF APPEALS                            NOV 9 1999

                               TENTH CIRCUIT                        PATRICK FISHER
                                                                                Clerk


 RANDAL E. YEARWOOD,

       Plaintiff-Appellant,

 v.                                                    No. 99-3155
                                                 (D.C. No. 96-3393-RDR)
 MARVIN L. NICKLES, Colonel; U.S.                       (Kansas)
 ARMY CLEMENCY AND PAROLE
 BOARD; MICHAEL A. LANSING,

       Defendants-Appellees.



                       ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, BALDOCK and HENRY, 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)(2); 10th Cir. R. 34.1(G). The cause is

therefore ordered submitted without oral argument.

      Randal E. Yearwood, proceeding pro se, appeals the district court’s

dismissal of his habeas corpus petition under 28 U.S.C. §2241, challenging the


       This order and judgment is not binding precedent, except under the
       *

doctrines of law of the case, res judicata, or 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.
Army Clemency and Parole Board’s (ACPB) revocation of his parole. He also

seeks to proceed on appeal in forma pauperis.

      Mr. Yearwood was convicted of murder by general court-martial in 1980,

and released on military parole in 1993. In January of 1995, his supervising parole

officer reported that a urine sample given by Mr. Yearwood on December 1, 1994,

tested positive for marijuana. As a result, Mr. Yearwood’s parole was suspended

and a Preliminary Interview was conducted during which he admitted to using

marijuana. The ACPB later ruled that a warrant was to issue for Mr. Yearwood to

return to Ft. Leavenworth, Kansas for a parole revocation hearing.

      Prior to the hearing Mr. Yearwood was arrested on a state charge of

assaulting a sixteen year old girl. Mr. Yearwood was incarcerated pending

disposition of the charge, which was subsequently dismissed “with leave to restore

as defendant is to answer to Federal parole violation.”

      At the parole revocation hearing Mr. Yearwood was accused of parole

violations relating to the marijuana use, which he admitted, and the assault charge,

which he denied. Mr. Yearwood submitted the affidavit of his neighbor, who

claimed to have seen him at her home on the evening of the alleged assault. The

neighbor did not appear for the hearing, and Mr. Yearwood asked the hearing

officer to speak to her on the phone. The officer refused. The victim also did not

testify at the hearing.



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      The ACPB revoked Mr. Yearwood’s parole based on the drug test and the

assault, and granted him “street time” credit up to November 30, 1994, the date of

his first parole violation. Mr. Yearwood filed a habeas corpus petition in federal

district court, which denied relief. He now appeals to this court.

      We conclude that Mr. Yearwood has demonstrated “a financial inability to

pay the required fees and the existence of a reasoned, nonfrivolous argument on

the law and facts in support of the issues raised on appeal.” DeBardeleben v.

Quinlan, 937 F.2d 502, 505 (10th Cir. 1991). Therefore we grant his request to

proceed on appeal in forma pauperis.

      We review de novo the district court’s decision to deny habeas relief. Kell

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

“[j]udicial review of a Parole Board’s decision . . . is a narrow one, and the

Board’s decision should not be disturbed by the courts unless there is a clear

showing of arbitrary and capricious action or an abuse of discretion.” Sotelo v.

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

      Mr. Yearwood first contends that the assault charge should not have been

considered in his parole revocation hearing because no preliminary interview was

conducted on the matter. The relevant Department of Defense Directive does not

require that all parole violations be the subject of an interview. Instead, the

interview’s purpose is “to determine whether probable cause exists to establish



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that a parolee has violated a condition of parole,” sufficient to trigger a parole

revocation hearing. DOD 1324.5 §J 7(c) (1988) (emphasis added). Mr.

Yearwood’s admission during his preliminary interview that he had used marijuana

created sufficient probable cause for the ACPB to proceed with a parole revocation

hearing. The record is clear that Mr. Yearwood in no way lacked notice that the

assault charges were to be considered during this hearing.

      Contrary to Mr. Yearwood’s next assertion, “[a]rmy regulations clearly

defeat any claim that revocation must be based upon a parolee’s conviction on

subsequent criminal conduct.” Foster v. Tillery, 996 F. Supp. 1316, 1318 (D. Kan.

1998). See DOD 1325.4 §J 7(a) (1988). The burden of proof in a revocation

hearing is by a preponderance of the evidence, Army Regulation 15-130 §4-5(a),

much lower than that for a criminal trial. The Constitution does not bar parole

authorities from considering criminal acts in a number of circumstances where the

parolee has not been convicted. See Campbell v. United States Parole Comm’n,

704 F.2d 106 (3d Cir. 1983).

      Mr. Yearwood also argues that the ACPB improperly denied him “street

credit” for the period of time after his positive drug test. The parole board may

order the forfeiture of “street credit” for periods during which the parolee was not

in material compliance with the conditions of parole. DOD 1325.4 §J 8(b) (1988).

Where there have been sporadic periods of misconduct, the ACPB may deny street



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time credit from the date of the first episode of misconduct. Tillery, 996 F. Supp.

at 1319.



      The court notes that Mr. Yearwood’s reliance on Jelks v. United States Army

Clemency and Parole Board, 1992 WL 190605 (D. Kan.), is misplaced. The

denial of street time credit in that case was defended only on section 8(a), which

requires “convict[ion] of a new offense committed after being released on parole.”

DOD 1325.4 § J8(a). Because no conviction resulted in Jelks, the denial of credit

under that section was unauthorized. Mr. Yearwood, in contrast, is being denied

street time credit pursuant to section 8(b), which merely requires that a parolee be

found to have been “not materially in compliance with the conditions of parole.”

Id. at 8(b). Because Mr. Yearwood violated the conditions of parole by smoking

marijuana, the district court did not err or break precedent by denying him street

time credit pursuant to section 8(b).

      Mr. Yearwood next argues that the ACPB had insufficient evidence before it

to suspend his parole on the basis of the sexual assault charge. Specifically, he

contends that the ACPB improperly weighed the hearsay evidence (the affidavit of

Mr. Yearwood’s alibi witness, and the police report concerning the assault) and

that the ACPB failed to consider Mr. Yearwood’s testimony on his own behalf.

This claim fails for several reasons. First, the ACPB need only determine by a



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preponderance of the evidence that the parolee has violated a condition of parole

in order to revoke parole. AR 15-130, 4-5(a); DOD 1325.4 §J 7(a)(1988).

Second, “[f]ormal rules of evidence do not apply to parole revocation hearings.

The hearing officer and the ACPB may use any relevant evidence when

considering a case for parole revocation.” AR 15-130, 4-5 (d)(4). It is well

settled that the ACPB may consider hearsay evidence which is reasonably reliable

in reaching its decision. See Kell, 26 F.3d at 1021 (quoting Maddox v. United

States Parole Comm’n, 821 F.2d 997, 1001 (5th Cir. 1987)). Moreover, as the

district court correctly pointed out, we cannot re-weigh the hearing officer’s

assessment of the relative credibility of the alibi witness’ affidavit, Mr.

Yearwood’s testimony, and the police report. We review only to determine

whether there was a rational basis in the record to support the ACPB’s decision.

Id. at 1019. Even if we agreed with Mr. Yearwood’s contentions, they would not

get him far because the record clearly indicates that the ACPB also based its

decision to revoke his parole on his positive drug test and admitted marijuana use.

      Finally, Mr. Yearwood claims that his rights to due process were violated

when the hearing officer refused to speak to his alibi witness on the phone, and

because the assault victim did not appear at the hearing. Revocation of parole is

not part of a criminal prosecution, and thus “the full panoply of rights due a

defendant in such a proceeding does not apply.” Morrissey v. Brewer, 408 U.S.



                                          -6-
471, 480 (1972). It was within the hearing officer’s discretion to deny the

witness’ telephone testimony, particularly when the officer had her affidavit and

was willing to accept that she would affirm on the phone all that she said in her

statement. DOD 1325.4 §J 7(d)(6) (1988). Although he was informed of his right

to request the production of adverse witnesses, Mr. Yearwood never did so. “In

light of documented notice to petitioner of his confrontation rights and his

undisputed failure to request the presence of adverse witnesses, we cannot

conclude that due process required [the victim] to testify as an adverse witness.”

Kell, 26 F.3d at 1019-20. Moreover, we note that Mr. Yearwood was represented

during these proceedings by counsel provided by the Army’s Trial Defense

Service. We see no grounds for his complaint that he was denied due process.

      For the foregoing reasons, the district court’s order is AFFIRMED.

                                       ENTERED FOR THE COURT

                                       Stephanie K. Seymour
                                       Chief Judge




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