J.W. WHITEHEAD, PETITIONER-APPELLANT,
v.
UNITED STATES PAROLE COMMISSION & WARDEN RISON, F.C.I. TALLEDEGA, RESPONDENTS-APPELLEES
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The court held that the United States Parole Commission was not collaterally estopped from revoking parole based on a state pandering charge, even if a prior conviction was set aside.
Petitioner J.W. Whitehead, convicted of bank robbery, appealed the denial of habeas corpus relief from his parole revocation. The revocation was based…
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PER CURIAM:
Habeas corpus petitioner J.W. Whitehead, convicted of aiding and abetting the commission of a bank robbery and armed bank robbery in violation of 18 U.S.C.A. § 2113(a), (d), appeals the denial of relief from the revocation of his parole. We affirm.
The United States Parole Commission was not collaterally estopped by a “prior finding of innocence” as to a state pandering charge, the basis of the parole revocation. First, Whitehead had been convicted of pandering, but his conviction was set aside because of lack of counsel. No retrial had occurred. Therefore, there was no “prior finding of innocence.” Second, even if there had been an acquittal on the criminal charge, the conduct can be the basis of parole revocation. Under 18 U.S. C.A. § 4214(d), the Commission need only determine that a preponderance of the evidence supports the parole violation, while the criminal proceeding requires proof beyond a reasonable doubt. Standlee v. Rhay, 557 F. 2d 1303, 1305-07 (9th Cir. 1977); Mack v. McCune, 551 F. 2d 251, 254 (10th Cir.1977). Third, the scope of review on appeal is whether the Commission abused its discretion in finding that the parolee violated a condition of his parole. 18 U.S.C.A. § 4218(d); Taylor v. United States Parole Commission, 734 F. 2d 1152, 1155 (6th Cir.1984). The district court correctly held there was no abuse of discretion in finding Whitehead guilty of a parole violation based on the state criminal charge of pandering.
Contrary to Whitehead’s contention that the Commission’s action was based solely on a probation officer’s summary letter, see Taylor, 734 F. 2d at 1155, the Commission had a detailed warrant and supporting affidavit, an information, and an incident report concerning the charge, together with a police report detailing the manner in which Whitehead solicited and arranged an act of prostitution. This was sufficient evidence of Whitehead’s conduct to support the Commission’s action.
Whitehead claims the Commission failed to follow its own regulations by rating his misdemeanor pandering violation equivalent to the federal felony violation of engaging in white slave trafficking. The regulations provide in pertinent part:
If an offense behavior is not listed, the proper category may be obtained by comparing the severity of the offense behavior with those of similar offense behaviors listed in Chapters One-Eleven. If, and only if, an offense behavior cannot be graded by reference to Chapters One-Eleven, the following formula may be used as a guide.
28 C.F.R. § 2.20, ch. 12. The Commission determined that soliciting a female for prostitution purposes on behalf of a.third party was not listed but was similar in nature to engaging in white slave traffic, which is rated category four in severity. Id. at § 2.20, ch. 11. Noting that the pandering charge did not involve interstate transportation, the Commission recognized it did involve arranging an act of prostitution. This is sufficiently similar offense behavior to make it unnecessary to refer to the alternative formula. The Commission neither failed to follow its own guidelines in evaluating the pandering charge, nor acted in a flagrant, unwarranted, or unauthorized manner. Page v. United States Parole Commission, 651 F. 2d 1083, 1085 (5th Cir.1981).
The contention that the Commission erroneously calculated his salient factor score on the basis of two false prior convictions has not been argued on appeal and therefore is deemed to have been abandoned. Rogero v. Noone, 704 F. 2d 518, 520 n. 1 (11th Cir.1983).
AFFIRMED.
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Glumb v. Honsted, 891 F.2d 872 (11th Cir. 1990)….Ed.2d 668 (1979). A federal court will not reverse a decision of the Commission unless it involves flagrant, unwarranted, or unauthorized action that constitutes an abuse of the Commission’s discretion. Whitehead v. United States Parole Commission, 755 F. 2d 1536, 1537 (11th Cir.1985). A defective hearing tape is not a fatal flaw in a parole revocation proceeding. Baker v. Wainwright, 527 F. 2d 372, 378 n. 23 (5th Cir.1976);2 Hrynko v. Crawford, 402 F.Supp. 1083, 1085 (E.D.Pa.1975). The Supreme Court requir…
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United States v. Haymond, 139 S. Ct. 2369 (U.S. 2019)…, 782, n. 5, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). Due process did not require proof beyond a reasonable doubt as is necessary at trial, see, e.g. , DeWitt v. Ventetoulo , 6 F. 3d 32, 36-37 (C.A.1 1993) ; Whitehead v. United States Parole Comm'n , 755 F. 2d 1536, 1537 (C.A.11 1985) ; Mack v. McCune , 551 F. 2d 251, 254 (C.A.10 1977) ; and the Double Jeopardy Clause did not apply, see, e.g. , Kell v. United States Parole Comm'n , 26 F. 3d 1016, 1020 (C.A.10 1994) (citing cases). For the past 35 years, it h…
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Collins v. Hendrickson, 371 F. Supp. 2d 1326 (M.D. Fla. 2005)…and extend the maximum term to be served, but it is not certain to do so, for good time may be restored. Wolff v. McDonnell, 418 U.S. 539, 560-61, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). See also Whitehead v. United States Parole Comm’n., 755 F.2d 1536 (11th Cir.1985) (finding that the revocation decision re *1351 quired “a preponderance of the evidence supports the parole violation, while the criminal proceeding requires proof beyond a reasonable doubt.”). As Respondents assert in their…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Rogero v. B.M. Noone, 704 F.2d 518 (11th Cir. 1983)
- Page v. United States Parole Comm'n, 651 F.2d 1083 (5th Cir. 1981)
- Mack v. McCUNE, 551 F.2d 251 (10th Cir. 1977)
- Taylor v. United States Parole Comm'n, 734 F.2d 1152 (6th Cir. 1984)
- Standlee v. Rhay, 557 F.2d 1303 (9th Cir. 1977)