Rush v. Petrovsky, 84-2588
| Decision Date | 11 March 1985 |
| Docket Number | No. 84-2588,84-2588 |
| Citation | 756 F.2d 675 |
| Parties | Joseph Patrick RUSH, Appellant, v. Joseph S. PETROVSKY, Warden, United States Medical Center for Prisoners and United States Parole Commission, Appellees. Joseph Patrick RUSH, Appellant, v. UNITED STATES PAROLE COMMISSION and Joseph S. Petrovsky, Warden, United States Medical Center for Prisoners, Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
No brief for appellant.
No brief for appellee.
Before McMILLIAN, ARNOLD and BOWMAN, Circuit Judges.
Joseph Patrick Rush appeals from a final order entered in the District Court 1 for the Western District of Missouri dismissing without prejudice his petitions for writ of habeas corpus. Rush v. Petrovsky, Nos. 83-3695-CV-S-WRC, 83-3699-CV-SWRC-R (W.D.Mo. Nov. 16, 1984) (order). For reversal appellant argues that the United States Parole Commission's use of the 1983 Guidelines to determine his tentative parole date violated the ex post facto clause of the Constitution. For the reasons discussed below, we summarily affirm the order of the district court. We also deny the motion for appointment of counsel on appeal.
Appellant filed two petitions for writ of habeas corpus which raised similar issues and were consolidated in the district court. Appellant claimed that the United States Parole Commission incorrectly calculated his tentative parole date using the 1983 Guidelines instead of the 1982 Guidelines. The district court referred the petitions to a magistrate. The magistrate recommended that the petitions be dismissed without prejudice and that appellant's motion for leave to proceed in forma pauperis be denied because the claims were frivolous. The district court accepted the recommendation of the magistrate. This appeal followed.
This court denied appellant's motion for leave to proceed in forma pauperis and ordered appellant to show cause within 15 days why the appeal should not be dismissed as without merit. Appellant also filed a motion for appointment of counsel on appeal. Appellant has filed his response to the show cause order. We have carefully reviewed the record in this appeal, including appellant's response.
Appellant argues that the Parole Commission's use of the 1983 Guidelines instead of the 1982 Guidelines to determine his tentative parole date violated the ex post facto clause. Appellant argues that application of the 1983 Guidelines, which were adopted and effective after he committed the offense in question, resulted in a later tentative parole date than that under the 1982 Guidelines. The district court carefully examined this claim and concluded that even if the 1982 Guidelines had been applied, appellant's tentative parole date (36-48 month range) would not have been more favorable than that determined under the 1983 Guidelines (40-47 month range). 2 Appellant...
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Yamamoto v. U.S. Parole Com'n, 85-1289
...declined to decide whether the federal parole guidelines are laws within the meaning of the ex post facto clause and Rush v. Petrovsky, 756 F.2d 675 (8th Cir.1985), found it unnecessary to consider this issue, we are favorably impressed with the holdings of the several circuits that have so......
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Maggard v. Moore, 83-1313-CV-W-3.
...has recognized the possibility of unconstitutionality through the use of ex post facto parole guidelines. See, e.g., Rush v. Petrovsky, 756 F.2d 675 (8th Cir. 1985); Richardson v. United States Parole Commission, 729 F.2d 1154 (8th Cir.1984); United States v. Miller, 599 F.2d 249 (8th The C......