                                                                            F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                             JAN 24 2005
                                TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                  Clerk

 GERALD McKINNON,

               Petitioner-Appellant,                     No. 04-3263
          v.                                             (D. of Kan.)
 N. L. CONNER, Warden; and                      (D.C. No. 02-CV-3418-RDR)
 UNITED STATES PAROLE
 COMMISSION,

               Respondents-Appellees.


                           ORDER AND JUDGMENT            *




Before KELLY , HENRY , and TYMKOVICH , Circuit Judges.           **




      Gerald McKinnon seeks review of the Order issued by the United States

District Court for the District of Kansas denying his petition for a writ of habeas



      *
         This order is not binding precedent, except under the doctrines of law of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; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      **
          Counsel for Respondent-Appellees elected not to file a brief on appeal
unless the court determined that a brief was necessary. After examining the
petitioner’s brief and the appellate record, the court has determined unanimously
that Respondent-Appellees need not file a brief. We have also determined
unanimously that oral argument would not be of material assistance in the
determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G).
The cause is therefore ordered submitted without oral argument.
corpus filed pursuant to 28 U.S.C.   § 2241. The district court declined to grant

relief from the Notice of Action issued by the United States Parole Commission

(Commission) denying parole. McKinnon alleged in his petition to the district

court that the Commission erred by relying on erroneous information in denying

parole and improperly departed from the District of Columbia parole guidelines.

On appeal, McKinnon argues the district court erred in rejecting these claims. We

affirm the decision of the district court.

                                     Background

      The facts underlying this appeal are not in dispute. In March 1985, a judge

in the Superior Court of the District of Columbia found McKinnon guilty of (1)

assault with intent to kill while armed for shooting a man in 1983 and (2) assault

with a dangerous weapon for stabbing his girlfriend in 1984. The court sentenced

him to a term of 5-15 years on the first conviction and a consecutive term of 1-3

years on the second.

      In March 1989, the District of Columbia Parole Board (Board) granted

McKinnon parole to a work release program. While residing in a halfway house,

he tested positive for cocaine and fled. McKinnon was subsequently returned to

custody and the Board rescinded parole in October 1989. He received a transfer

to a different halfway house in April 1990 and waived a parole hearing the

following month. In August 1990, McKinnon was arrested and later convicted of


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burglary while armed, assault with intent to kill while armed, mayhem while

armed, and carrying a dangerous weapon after he twice stabbed and also cut the

hand of the same woman that he had stabbed in 1984.

      At an initial parole hearing in July 1999 before the Commission,   1
                                                                             the

hearing examiner considered McKinnon’s criminal offenses and numerous

disciplinary reports he received while incarcerated, as well as copies of

certificates offered by McKinnon showing his vocational and counseling

achievements. Applying the D.C. parole guidelines, the examiner calculated a

base point score of eight, which indicated that parole be denied and that a

rehearing be held after 18-24 months. The examiner determined McKinnon was a

dangerous risk for parole and recommended another hearing in 24 months.

      Thereafter, a second hearing examiner reviewed the initial recommendation

and also concluded that parole should be denied. However, the second examiner

recommended departing from the applicable guideline and postponing a rehearing

until 60 months after the parole eligibility date, viewing McKinnon as “to an

exceptional degree, . . . a homicidally vengeful criminal personality” who was

“unlikely to improve the seriousness of the risk . . . to public safety” and

indicating that McKinnon’s history of prison misconduct and violent crime,



      1
       As noted by the district court, the Commission assumed responsibility for
parole matters involving D.C. offenders in August 1998.

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including the fact that he twice assaulted the same woman, warranted the

departure. The examiner also noted that the 1990 stabbing occurred while

McKinnon had “escaped from the halfway house.”

      The Commission adopted the recommendation of the second examiner and

issued a Notice of Action in October 1999 denying parole and continuing

McKinnon to a rehearing in October 2004, after the service of an additional 60

months. The Notice mirrored the second examiner’s description of McKinnon’s

character, found a departure from the parole guidelines warranted for the same

reasons, recounted McKinnon’s criminal conduct in detail, and again noted that

the 1990 stabbing occurred while he had “escaped.”

      McKinnon subsequently requested that the Commission reconsider its

decision and either grant parole or set a rehearing date within the 18-24 month

guideline range, arguing that the Commission erroneously considered his status as

a prison escapee in 1990 when in fact he had not been adjudicated as such. The

Commission denied the request, finding numerous other factors supported the

decision. However, in February 2003, the Commission issued a corrected Notice

of Action, replacing “escaped from the halfway house” with “left the halfway

house.”

                                    Discussion




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         McKinnon now appeals the district court’s denial of his petition asserting

two arguments. First, he argues that the court improperly rejected his claim that

the Commission erred in refusing to reconsider its decision following proof that

he had not been an adjudicated escapee in 1990. Second, he claims that the court

erred by finding that the Commission correctly applied the regulations applicable

to D.C. offenders.

         As indicated by the district court in its thorough Order, the standard of

review in a habeas corpus action of a federal parole determination is limited. A

federal court will not overturn a decision by the Commission “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) (citing     Dye v. United States Parole

Comm’n , 558 F.2d 1376, 1378 (10th Cir. 1977). “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 Commission’s conclusions embodied in its statement of

reasons.” Misasi v. United States    Parole Comm’n , 835 F.2d 754, 758 (10th Cir.

1987).

         Reconsideration.    McKinnon first challenges the Commission’s failure to

reconsider his parole status after being informed that it had erroneously indicated

that he had been an escapee at the time he committed the 1990 crimes. Though


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the Commission later issued a corrected Notice of Action replacing the term

“escaped,” it did not reopen McKinnon’s case because of the existence of “so

many other factors” justifying the decision to deny parole. These factors include,

as indicated by the Notice of Action, McKinnon’s significant history of violent

crime separate from the disputed escape and a serious record of prison

misconduct. After reviewing the record and the Notice of Action, we agree with

the district court that a rational basis existed for the Commission’s decision not to

reconsider McKinnon’s status and therefore that the Commission did not abuse its

discretion.

       Departure.    McKinnon also asserts the Commission erred by departing

from the applicable D.C. parole guideline, which called for a rehearing after 18-

24 months. Petitioner claims the guidelines are mandatory. The district court,

however, correctly relied on case law holding that the particular circumstances of

a prisoner’s history may warrant departure from the guidelines.      See Ellis v.

District of Columbia , 84 F.3d 1413, 1419–20 (D.C. Cir. 1996) (holding that Board

has discretion to depart from guidelines);     McRae v. Hyman , 667 A.2d 1356, 1357

(D.C. 1995) (same). The Commission, which assumed parole responsibilities for

D.C. code prisoners in 1998, also has discretion to depart from its own guidelines.

See Skinner v. United States Parole Comm’n         , 2002 WL 458993, *2 (D.D.C. 2002)

(unpublished opinion). Therefore, we agree with the district court and


                                             -6-
consequentially hold that the Commission did not abuse its discretion in departing

from the guidelines.

                                   Conclusion

      The decision of the district court dismissing the petition for habeas corpus

is AFFIRMED.

                                              Entered for the Court

                                              Timothy M. Tymkovich
                                              Circuit Judge




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