The Honorable Nanette K. Laughrey, United States District Judge for the 1 Eastern and Western Districts of Missouri, sitting by designation.

UNITED STATES COURT OF APPEALS

For the Eighth Circuit

No. 97-2962MN

United States of America, *
* Appellee, *
*
v. * Appeal from the United States
* District Court for the District Manuel Lawson, * of Minnesota.
* Appellant. *

Submitted: May 13, 1998 Filed: September 11, 1998

Before McMILLIAN, MORRIS SHEPPARD ARNOLD, Circuit Judges, and LAUGHREY, District Judge. 1

LAUGHREY, District Judge.

Manu el Lawson appeals from the denial of his habeas corpus petition whic h challenged the revocation of his parole by the United States Parole Commission

. Lawson claims that

his writ of habeas corpus should have been granted because therePowers had contacted the F.B.I. and had given them permission to record his 2 meetings with Lawson. There was also testimony from the government agents who investigated this 3 incident, including a statement by Power’s brother, Scotty, that Lawson had asked Scotty to assist him in robbing a bank. (Appellant’s App. to Br. at 43a. )

-2- is no evid ence to support the Parole Commission’s finding that Lawson solicite d

ano ther to commit bank robbery and because the charge of solicitation was not made unti l two years after his arrest. We affirm the judgment of the district court denyin g habeas corpus relief.

On Februa ry 7, 1994, Lawson was paroled from a twenty-five-year sentenc e which he was serving for bank robbe ry. Within a month of his release from prison, he left his district of supervision and traveled to Tennessee where he told a friend, Bobby Powers, that he was planning to rob a bank. As part of this robbery plan, Lawso n asked Powers to purchase a shotgun for him. Lawson’s conversation with Powers was taped by the F.B.I., and Lawson was subsequently ar rested and charged with violating 2 parole by conspiring t o commit a bank robbery. At the hearing on this charge, Bobby Powers testifi ed and the tape recording of Lawson’s statements and a transcription of the tape recording were introduced into evidence. Based on this evidence, the hearing 3 examiner concluded that there was no conspiracy to commit a bank robbery because the person solicited by Lawson to buy the gun was a government informant and could not be a co- conspirator. Instead, the hearing examiner found that there had been a n attemp t to commit bank robbery and recommended revocation. The Parole Commission adopted this recommendation a nd revoked Lawson’s parole. The revocation was app ealed to the National Appeals Board which ruled that Lawson had not attempte d to rob a b ank because he had committed no overt act. Nonetheless, the Nationa l Appe als Board affirmed the Parole Commission’s revocation, finding that Lawso n violated the terms of his parole by attempting to possess a shotgun as a felon.After the National Appeals Board ordered a new hearing, the district court 4 dismissed Lawson’s first writ of habeas corpus, finding that Lawson had failed to exhaust his administrative remedies.
-3- Laws on challenged the National Appeals Board’s ruling by filing a writ o f habeas corpus in the United States District Court for the Western Distric t of Wisconsin, pursuan t to 28 U.S.C. § 2241. While the Writ was pending, the National Appeal s Board vacated the revocation of Lawson’s parole and remanded for a new hearing. 4 At this hearing, the Parole Commission again found that Lawson had violat ed his parole by lea ving his supervision district, but additionally ruled that he had solicited another person to commit a bank robbery. La wson was sentenced to 76 months in prison with a presumpti ve parole date of July 2, 2002. A second writ of habeas corpus followed, the denial of which prompted this appeal.

Lawson’s second writ of h abeas corpus was filed pro se, pursuant to 28 U.S.C. § 2241. The United States District Court for the District of Minnesota appointed a n attorney t o represent Lawson, and the following claims were raised as grounds fo r habeas corpus relief: 1) the Commission violated the due process and double jeopardy clauses of the United States Constituti on; 2) the Commission violated its own rules; 3) the Commission’s findings were arbitrary and capricious; 4) the Commission’s actions

were vindictive; and 5) there existed compelling reasons for a more lenient sentence. On appeal, Lawson now cla ims two grounds for relief: 1) his due process rights were viol ated because the Commission did not charge him with the offense of solicitin g another to commit bank robbery until two years after his arrest, thereby preventing him from developing his defense; and 2) the Commission’s finding that Lawson solicite d another to commit a crime of violence was not supported by the evidence.

The Unite d States argues that Lawson has waived his asserted grounds fo r appeal because he did not raise them in the district court. Generally, issues no t presented to the district court will not be considered on appeal unless a finding of-4-

waiver would be unfair or unjust. Seniority Research G roup v. Chrysler Motor Corp ., 976 F.2d 1185 (8 Cir. 1992); United States v. Grajales-Montoya , 117 F.3d 356 (8 th th Cir. 1997); see also Singleton v. Wulff , 428 U.S. 106, 120 (1976).

Lawson claim s that his due process claim based on the delay in charging ha s been preserved for appeal becaus e it was raised before the Parole Commission, and in his pro se writ o f habeas corpus, and was addressed in the Magistrate Judge’s Report and Recommendation. The record does not su pport this conclusion. Lawson relies on the following statement by a Parole hearing officer to show that the issue was raised in the revocation hearing.
[Lawson’s attorney] also said that there is a question of whethe r or not the Commission can conduct a hearing, make a deci sion and then modify that decision at a later date and now again consider modifying the decisio n again in relation to the offense behavior. He referred to various lega l terminology that refers to this activity but it, in a layman’s term, would be kind of like casting around to see what might stick.
(Appellant ’s Br. at 11, n.2.) At best, this shows that Lawson’s attorney wa s challengin g the revocation on a number of unstated grounds. It does not demonstrate that one of th ose grounds was a due process violation based on his inability to collect

ev idence because of the delay in charging. Lawson also claims that this issue wa s raised in his second writ of habeas corpus. The second writ of habeas corpus , however, merely says that Lawson is challenging the “Parole Board’s finding that I solicited Bank Robbery.” (Appellant’s App. to Br. at 91a.) This does not show that the due proc ess claim now raised on appeal was asserted in the court below. Finally, Lawson cl aims that this issue was addressed in the Magistrate’s Report an d Recommendation, but then also argues that the Magistrate did not take into account his delay and prejudice contention and, therefore, the issue must be resolved on appeal.To establish his due process claim based on delay in charging, Lawson 5 would have to show that he was prejudiced by the Commission’s failure to pursue the solicitation charge in a timely fashion. White v. United States Parole Comm’n , 856 F.2d 59 (8 Cir. 1988).

th

-5- We have examined the record carefully and have found no evide nce that Lawson has ever presented to the distr ict court his current argument that his due process rights were vi olated because the two-year delay in charging prevented him from adequately preparing a defense. Because this issue was not presented to the district court, th e
reco rd does not “contain the finding[s] necessary to an evaluation of the validity o f [the] appellant’s argument s.” Stafford v. Ford Motor Co ., 790 F.2d 702, 706 (8 Cir. th 1986) (holding that one of the reasons that an issue s hould not be considered on appeal if it has not been considered in the lower court is that the record will generally no t contain th e findings necessary to evaluate the appellant’s argument.) Nor has ther e been an oppo rtunity for the appellee to present evidence on the question of whether a delay has, in fact, prejudiced Lawson. See von Kerssenbrock-Praschma v. Saunders , 5 121 F.3d 373, 376 (8 Cir. 1987) (holding that “a litigant should not be surprised on th appeal by a f

inal decision there of issues upon which they had no opportunity t o introduce evidence.)
Finally, this is not a case where an injustice would occur o r principles of fairness would be violated by finding that the par ticular due process claim now asserted for the fi rst time on appeal has been waived. An attorney was appointed to represent th e appellant after he filed a pro se writ of habeas corpus, and there is simply n o explanation as to why this issue was not preserved, given the extensive briefing an d argu ment before two district courts, the National Appeals Board and the Parol e Commission.

On the other ha

nd, we find that Lawson has adequately preserved for appellate review his claim that his due process rights were violated because there w as insufficient-6-

evidence to support the Commission’s finding that he had solicited another to rob a bank. While the United States claims that this issue was not pres erved for appeal, even i t acknowledges that Lawson did present to the district court his claim that there was insufficie nt

evidence to support a charge of conspiracy to commit bank robbery

. (Appellee’ s Br. at 11.) Furthermore, the Magistrate, in his Report an d Recom mendation, specifically held that there was sufficient evidence to support th e charge of solicitation to commit bank robbery. Given this record, it cannot be said that the iss ue has not been adequately preserved for review. Nonetheless, the restrictiv e standard of r eview applicable to a parole revocation decision precludes consideration of the issue on jurisdictional grounds.
We have previously held that a federal court does not have jurisdiction to review a substantive decisio n of the Parole Commission. A district court is only permitted to determine whether the Parole Commission has violated the Constitution or exceeded its statutory authority. Jones v. United States Bureau of Prisons , 903 F.2d 1178, 1182- 83 (8 Cir. 1 990); Larson v. United States , 907 F.2d 85, 86-87 (8 Cir. 1990). W e th th have specifically ruled that challenges to the sufficiency of the evidence to support a revocation ord er is a substantive matter and non-reviewable. Wright v. United States Parole Comm ’n , 948 F.2d 433, 435 (8 Cir. 1991). The district court, therefore , th lacked jur isdiction to review the sufficiency of the evidence to support the Parol e Commission’s finding. The judgment of the district court is affirmed.
A true copy.

Attest:

CLERK. U.S. COURT OF APPEALS, EIGHTH CIRCUIT.