Whitehead v. U.S. Parole Com'n
| Decision Date | 28 March 1985 |
| Docket Number | No. 84-7600,84-7600 |
| Citation | 755 F.2d 1536 |
| Parties | J.W. WHITEHEAD, Petitioner-Appellant, v. UNITED STATES PAROLE COMMISSION & Warden Rison, F.C.I. Talledega, Respondents-Appellees. Non-Argument Calendar. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Frank W. Donaldson, U.S. Atty., Birmingham, Ala., Shirley I. McCarty, Asst. U.S. Atty., for respondents-appellees.
Appeal from the United States District Court for the Northern District of Alabama.
Before RONEY, FAY and JOHNSON, Circuit Judges.
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. Sec. 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. Sec. 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. Sec. 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...
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