                  UNITED STATES COURT OF APPEALS
                         For the Eighth Circuit



                                 No. 97-2962MN


United States of America,               *
                                        *
             Appellee,                  *
                                        *
    v.                                  *   Appeal from the United States
                                        *   District Court for the District
Manuel Lawson,                          *   of Minnesota.
                                        *
             Appellant.                 *




                            Submitted: May 13, 1998
                            Filed: September 11, 1998


Before McMILLIAN, MORRIS SHEPPARD ARNOLD, Circuit Judges, and
      LAUGHREY, District Judge.1


LAUGHREY, District Judge.


      Manuel Lawson appeals from the denial of his habeas corpus petition which
challenged the revocation of his parole by the United States Parole Commission.
Lawson claims that his writ of habeas corpus should have been granted because there

         1
       The Honorable Nanette K. Laughrey, United States District Judge for the
Eastern and Western Districts of Missouri, sitting by designation.
is no evidence to support the Parole Commission’s finding that Lawson solicited
another to commit bank robbery and because the charge of solicitation was not made
until two years after his arrest. We affirm the judgment of the district court denying
habeas corpus relief.

        On February 7, 1994, Lawson was paroled from a twenty-five-year sentence
which he was serving for bank robbery. Within a month of his release from prison, he
left his district of supervision and traveled to Tennessee where he told a friend, Bobby
Powers, that he was planning to rob a bank. As part of this robbery plan, Lawson
asked Powers to purchase a shotgun for him. Lawson’s conversation with Powers was
taped by the F.B.I.,2 and Lawson was subsequently arrested and charged with violating
parole by conspiring to commit a bank robbery. At the hearing on this charge, Bobby
Powers testified and the tape recording of Lawson’s statements and a transcription of
the tape recording were introduced into evidence.3 Based on this evidence, the hearing
examiner concluded that there was no conspiracy to commit a bank robbery because
the person solicited by Lawson to buy the gun was a government informant and could
not be a co-conspirator. Instead, the hearing examiner found that there had been an
attempt to commit bank robbery and recommended revocation. The Parole Commis-
sion adopted this recommendation and revoked Lawson’s parole. The revocation was
appealed to the National Appeals Board which ruled that Lawson had not attempted
to rob a bank because he had committed no overt act. Nonetheless, the National
Appeals Board affirmed the Parole Commission’s revocation, finding that Lawson
violated the terms of his parole by attempting to possess a shotgun as a felon.



      2
      Powers had contacted the F.B.I. and had given them permission to record his
meetings with Lawson.
      3
       There was also testimony from the government agents who investigated this
incident, including a statement by Power’s brother, Scotty, that Lawson had asked
Scotty to assist him in robbing a bank. (Appellant’s App. to Br. at 43a. )
                                          -2-
       Lawson challenged the National Appeals Board’s ruling by filing a writ of
habeas corpus in the United States District Court for the Western District of Wisconsin,
pursuant to 28 U.S.C. § 2241. While the Writ was pending, the National Appeals
Board vacated the revocation of Lawson’s parole and remanded for a new hearing.4
At this hearing, the Parole Commission again found that Lawson had violated his parole
by leaving his supervision district, but additionally ruled that he had solicited another
person to commit a bank robbery. Lawson was sentenced to 76 months in prison with
a presumptive parole date of July 2, 2002. A second writ of habeas corpus followed,
the denial of which prompted this appeal.

       Lawson’s second writ of habeas corpus was filed pro se, pursuant to 28 U.S.C.
§ 2241. The United States District Court for the District of Minnesota appointed an
attorney to represent Lawson, and the following claims were raised as grounds for
habeas corpus relief: 1) the Commission violated the due process and double jeopardy
clauses of the United States Constitution; 2) the Commission violated its own rules; 3)
the Commission’s findings were arbitrary and capricious; 4) the Commission’s actions
were vindictive; and 5) there existed compelling reasons for a more lenient sentence.
On appeal, Lawson now claims two grounds for relief: 1) his due process rights were
violated because the Commission did not charge him with the offense of soliciting
another to commit bank robbery until two years after his arrest, thereby preventing him
from developing his defense; and 2) the Commission’s finding that Lawson solicited
another to commit a crime of violence was not supported by the evidence.

      The United States argues that Lawson has waived his asserted grounds for
appeal because he did not raise them in the district court. Generally, issues not
presented to the district court will not be considered on appeal unless a finding of


      4
       After the National Appeals Board ordered a new hearing, the district court
dismissed Lawson’s first writ of habeas corpus, finding that Lawson had failed to
exhaust his administrative remedies.
                                           -3-
waiver would be unfair or unjust. Seniority Research Group v. Chrysler Motor Corp.,
976 F.2d 1185 (8th Cir. 1992); United States v. Grajales-Montoya, 117 F.3d 356 (8th
Cir. 1997); see also Singleton v. Wulff, 428 U.S. 106, 120 (1976).

       Lawson claims that his due process claim based on the delay in charging has
been preserved for appeal because it was raised before the Parole Commission, and in
his pro se writ of habeas corpus, and was addressed in the Magistrate Judge’s Report
and Recommendation. The record does not support this conclusion. Lawson relies on
the following statement by a Parole hearing officer to show that the issue was raised
in the revocation hearing.

      [Lawson’s attorney] also said that there is a question of whether or not the
      Commission can conduct a hearing, make a decision and then modify that
      decision at a later date and now again consider modifying the decision
      again in relation to the offense behavior. He referred to various legal
      terminology that refers to this activity but it, in a layman’s term, would be
      kind of like casting around to see what might stick.

(Appellant’s Br. at 11, n.2.) At best, this shows that Lawson’s attorney was
challenging the revocation on a number of unstated grounds. It does not demonstrate
that one of those grounds was a due process violation based on his inability to collect
evidence because of the delay in charging. Lawson also claims that this issue was
raised in his second writ of habeas corpus. The second writ of habeas corpus,
however, merely says that Lawson is challenging the “Parole Board’s finding that I
solicited Bank Robbery.” (Appellant’s App. to Br. at 91a.) This does not show that
the due process claim now raised on appeal was asserted in the court below. Finally,
Lawson claims that this issue was addressed in the Magistrate’s Report and
Recommendation, but then also argues that the Magistrate did not take into account his
delay and prejudice contention and, therefore, the issue must be resolved on appeal.




                                           -4-
        We have examined the record carefully and have found no evidence that Lawson
has ever presented to the district court his current argument that his due process rights
were violated because the two-year delay in charging prevented him from adequately
preparing a defense. Because this issue was not presented to the district court, the
record does not “contain the finding[s] necessary to an evaluation of the validity of
[the] appellant’s arguments.” Stafford v. Ford Motor Co., 790 F.2d 702, 706 (8th Cir.
1986) (holding that one of the reasons that an issue should not be considered on appeal
if it has not been considered in the lower court is that the record will generally not
contain the findings necessary to evaluate the appellant’s argument.) Nor has there
been an opportunity for the appellee to present evidence on the question of whether a
delay has, in fact, prejudiced Lawson.5 See von Kerssenbrock-Praschma v. Saunders,
121 F.3d 373, 376 (8th Cir. 1987) (holding that “a litigant should not be surprised on
appeal by a final decision there of issues upon which they had no opportunity to
introduce evidence.)

        Finally, this is not a case where an injustice would occur or principles of fairness
would be violated by finding that the particular due process claim now asserted for the
first time on appeal has been waived. An attorney was appointed to represent the
appellant after he filed a pro se writ of habeas corpus, and there is simply no
explanation as to why this issue was not preserved, given the extensive briefing and
argument before two district courts, the National Appeals Board and the Parole
Commission.

      On the other hand, we find that Lawson has adequately preserved for appellate
review his claim that his due process rights were violated because there was insufficient


       5
        To establish his due process claim based on delay in charging, Lawson
would have to show that he was prejudiced by the Commission’s failure to pursue
the solicitation charge in a timely fashion. White v. United States Parole Comm’n,
856 F.2d 59 (8th Cir. 1988).
                                            -5-
evidence to support the Commission’s finding that he had solicited another to rob a
bank. While the United States claims that this issue was not preserved for appeal, even
it acknowledges that Lawson did present to the district court his claim that there was
insufficient evidence to support a charge of conspiracy to commit bank robbery.
(Appellee’s Br. at 11.)          Furthermore, the Magistrate, in his Report and
Recommendation, specifically held that there was sufficient evidence to support the
charge of solicitation to commit bank robbery. Given this record, it cannot be said that
the issue has not been adequately preserved for review. Nonetheless, the restrictive
standard of review applicable to a parole revocation decision precludes consideration
of the issue on jurisdictional grounds.

        We have previously held that a federal court does not have jurisdiction to review
a substantive decision of the Parole Commission. A district court is only permitted to
determine whether the Parole Commission has violated the Constitution or exceeded
its statutory authority. Jones v. United States Bureau of Prisons, 903 F.2d 1178, 1182-
83 (8th Cir. 1990); Larson v. United States, 907 F.2d 85, 86-87 (8th Cir. 1990). We
have specifically ruled that challenges to the sufficiency of the evidence to support a
revocation order is a substantive matter and non-reviewable. Wright v. United States
Parole Comm’n, 948 F.2d 433, 435 (8th Cir. 1991). The district court, therefore,
lacked jurisdiction to review the sufficiency of the evidence to support the Parole
Commission’s finding. The judgment of the district court is affirmed.

      A true copy.

             Attest:

                     CLERK. U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                           -6-
