NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILLIAM D. DUNNE, 

Petitioner-Appellant, 

 v. 

T. JUSINO, Warden, 

Respondent-Appellee.

No. 21-55507 

D.C. No. 2:20-cv-04504-MWF-JC 

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

Michael W. Fitzgerald, District Judge, Presiding

Submitted April 5, 2023**

Before: WALLACE, D. NELSON, and FERNANDEZ, Circuit Judges.

Federal prisoner William D. Dunne appeals pro se from the district court’s 

judgment denying his 28 U.S.C. § 2241 habeas petition, which challenged the 

Parole Commission’s (“Commission”) failure to grant parole at his 2014 parole 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

APR 5 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 21-55507 

reconsideration hearing and 2019 parole interim hearing.

1

 We have jurisdiction 

under 28 U.S.C. § 1291. We review the denial of a § 2241 petition de novo, see

Rizzo v. Armstrong, 921 F.2d 855, 858 (9th Cir. 1990), and we affirm.

The Commission’s decision to deny parole was based, in part, on its finding 

that Dunne continued to associate with anarchist organizations. Dunne contends

that in doing so, the Commission relied on non-existent criteria, rendering its 

decision “arbitrary and capricious,” and violated his First Amendment right of 

association. We disagree. The Commission shall consider relevant information as 

may be reasonably available when determining whether paroling Dunne would 

“jeopardize the public welfare.” 18 U.S.C. §§ 4206(a) and 4207; 28 C.F.R. § 2.19. 

Nor has Dunne shown that the Commission’s consideration of his anarchist 

affiliation violated his First Amendment right to associate, which is limited in the 

context of prison. See Overton v. Bazzetta, 539 U.S. 126, 131 (2003); see also

Blaisdell v. Frappiea, 729 F.3d 1237, 1246 (9th Cir. 2013) (explaining that the

First Amendment’s right to associate only extends to “groups engaged in 

expressive activities”). Further, insofar as Dunne criticizes the weight the 

1 Although the Sentencing Reform Act of 1984 repealed the Parole Commission 

and Reorganization Act (“Parole Act”), federal inmates who committed an offense 

before November 1, 1987, remain eligible for parole. See Benny v. U.S. Parole 

Comm’n, 295 F.3d 977, 981 n.2 (9th Cir. 2002). Because Dunne was convicted in 

1972 and 1980, his claims are governed by the Parole Act. See 18 U.S.C. §§ 

4201–4218. 
3 21-55507 

Commission gave to documents concerning his affiliations with anarchist 

organizations, his challenge is beyond the scope of judicial review. See Coleman 

v. Perrill, 845 F.2d 876, 878 (9th Cir. 1988) (“Courts may not . . . review the 

relevance the Commission attributes to the information it considers.”).

Dunne also contends that his due process rights at his 2019 interim parole 

hearing were violated by the Commission’s consideration of a 2017 disciplinary

infraction, and by the fact the Bureau of Prisons (“BOP”) keeps records of 

disciplinary infractions longer than it maintains records of an inmate’s positive 

behavior. The Parole Act and applicable regulations require the Commission to 

consider reports and recommendations prepared by prison staff. See 18 U.S.C. 

§ 4207(1); 28 C.F.R. § 2.19(a)(1); see also 28 C.F.R. § 2.14(a)(2)(iii) (providing 

that the Commission may delay or rescind a presumptive parole date for 

disciplinary infractions). Consistent with this authority, the Commission 

considered Dunne’s positive programming in addition to his disciplinary 

infractions. Whether the 2017 disciplinary hearing suffered from alleged 

procedural and substantive flaws is beyond the scope of this appeal, and the weight 

the Commission gave to the disciplinary matter is beyond the scope of judicial 

review. See Coleman, 845 F.2d at 878. Dunne’s conclusory statement that the 

BOP’s record retention policy violates due process does not amount to a 

constitutional claim subject to judicial review. See Roberts v. Corrothers, 812 
4 21-55507 

F.2d 1173, 1177 (9th Cir. 1987) (“Petitioners unhappy with discretionary parole 

decisions cannot circumvent the Parole Act and obtain judicial review simply by 

labeling their claims as constitutional or ‘extra-discretionary.’”).

Dunne next contends that the Commission impermissibly increased his 

severity category from seven to eight at his 2014 rehearing. As an initial matter,

the Commission may revise a prisoner’s guidelines “at any time as deemed 

appropriate.” 28 C.F.R. § 2.20(g). Further, the record belies Dunne’s contention 

that the hearing examiner decided to increase his severity category before the 

hearing. Rather, consistent with the regulations, the examiner made the change 

after learning new information regarding Dunne’s co-conspirator’s shooting of a 

police officer. See 28 C.F.R. § 2.20, ch. 13, subch. A, § 4 (providing that prisoners 

convicted of conspiracy “must be held accountable for the criminal activities 

committed by his co-conspirators . . . .”); Vargas v. U.S. Parole Comm’n, 865 F.2d 

191, 195 (9th Cir. 1988) (“The Commission’s consideration of unadjudicated 

allegations or hearsay information to determine reparole guidelines does not 

violate due process.”). Insofar as Dunne challenges the Commission’s 

characterization of his co-conspirator’s conduct, that is a matter within the 

Commission’s discretion and therefore beyond the scope of judicial review. See 

Coleman, 845 F.2d at 878.

Dunne lastly argues that the Commission’s failure to consider the disparate 
5 21-55507 

treatment of his codefendants who were already released was “unreasonable, 

irrational, arbitrary, or capricious.” This claim is not subject to judicial review, see 

Coleman, 845 F.2d at 877–79, notwithstanding Dunne’s attempt to characterize the 

Commission’s inaction as a constitutional deprivation, see Roberts, 812 F.2d at 

1177.

Because Dunne’s claims are either belied by the record or fail to show that 

the Commission acted outside of its statutory authority or violated the Constitution, 

the district court properly denied his § 2241 petition. See Coleman, 845 F.2d at 

878 (explaining that “federal courts can review Parole Commission decisions only 

within a very narrow scope”).

AFFIRMED.