McClanahan v. Mulcrome, 80-1285
| Decision Date | 28 October 1980 |
| Docket Number | No. 80-1285,80-1285 |
| Citation | 636 F.2d 1190 |
| Parties | Arlin Zelo McCLANAHAN, Plaintiff-Appellant, v. R. T. MULCROME, Commissioner, U. S. Parole Commission, North Central Region, KCI Bank Building, 8800 N.W. 112th Street, Kansas City, Mo. 64153, and the United States of America, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Robert E. Hart, Independence, Mo., for plaintiff-appellant.
Before SETH, Chief Judge, and PICKETT and SEYMOUR, Circuit Judges.
After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); Tenth Circuit R. 10(e). The cause is therefore ordered submitted without oral argument.
This is an appeal from an order of the district court dismissing appellant McClanahan's petition for writ of mandamus, which seeks to compel reinstatement of a presumptive parole date. The relevant facts follow.
Appellant, who is presently incarcerated in the United States Penitentiary at Leavenworth, Kansas, was convicted in federal district court of interstate transportation of a stolen vehicle and of making a false statement while applying for a loan. His codefendant Ronald Giltner was also convicted. Appellant was sentenced to five years in prison and Giltner to three years. On February 20, 1979, appellant was given his initial parole hearing. The hearing examiners placed appellant's offense severity in the "high" category and informed him that they would recommend a presumptive parole date of June 17, 1980.
Subsequently, on March 2, 1979, appellant was notified that his case was being reopened to reconsider the severity level of his offense. On May 3, 1979, appellant's offense severity was changed to "very high" and his presumptive parole date was continued until October 17, 1981, which on appeal was modified to April 17, 1981. After exhausting his administrative remedies, appellant filed this petition for writ of mandamus to compel reinstatement of the June 17, 1980 parole date.
The essence of appellant's argument is that the Parole Commission could not, under its own regulations, reopen his case. The regulation in question states as follows:
Notwithstanding the appeal procedure of §§ 2.25 and 2.26, the appropriate Regional Commissioner may, on his own motion, reopen a case at any time upon the receipt of new information of substantial significance and then may take any action authorized under the provisions and procedures of Section 2.25. Original jurisdiction cases may be reopened upon the motion of the appropriate regional commissioner under the procedures of Section 2.17. (Emphasis added.)
28 C.F.R. § 2.28 (1978). Appellant asserts that the Commission was not in receipt of "new information," thus making the reopening of his case invalid under the regulation.
The Regional Commissioner argues that there was an error originally in assessing the severity rating...
To continue reading
Request your trial
-
Kansas Bd. of Regents v. Pittsburg State University Chapter of Kansas-National Educ. Assn., KANSAS-NATIONAL
...with the regulation. Columbian Fuel Corp. v. Panhandle Eastern Pipe Line Co., 176 Kan. 433, 440, 271 P.2d 773 (1954); McClanahan v. Mulcrome, 636 F.2d 1190 (10th Cir.1980). A similar standard of review is applicable when the administrative agency has construed or interpreted a written contr......
-
Iuteri v. Nardoza
...Commission as a record reviewing, not an investigative agency. Fardella v. Garrison, 698 F.2d 208 (4th Cir.1982); McClanahan v. Mulcrome, 636 F.2d 1190, 1191 (10th Cir. 1980); Fox v. United States Parole Commission, 517 F.Supp. 855 (D.Kan.1981); see Iuteri v. Nardoza, 662 F.2d 159 (2d Cir. ......
-
Knight v. US Parole Com'n, 88 C 10601.
...Cir. 1988); Goble v. Matthews, 814 F.2d 1104, 1108 (6th Cir.1987); Fardella v. Garrison, 698 F.2d 208 (4th Cir.1982); McClanahan v. Mulcrome, 636 F.2d 1190 (10th Cir.1980); Williams v. U.S. Parole Comm'n, 707 F.2d at 1065. However, in Schiselman, the Seventh Circuit made a distinction betwe......
-
Schiselman v. U.S. Parole Com'n, 87-1471
...(2d Cir.1981); Fox v. United States Parole Commission, 517 F.Supp. 855 (D.Kan.), aff'd, No. 81-1432 (10th Cir.1981); McClanahan v. Mulcrome, 636 F.2d 1190 (10th Cir.1980); Williams v. United States Parole Commission, 707 F.2d 1060 (9th Cir.1983). Here, however, the information did not merel......