*This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicataand collateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 6 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ROBERT EDWARD KOZELSKI, Petitioner-Appellant,

v. WARDEN BOOKER, Respondent-Appellee. No. 97-1426 (D.C. No. 97-M-1099) (D. Colo.)

ORDER AND JUDGMENT *

Before SEYMOUR, BRORBY , and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.

Mr. Robert Kozelski is a federal prisoner. Acting pro se , he sought a writ1 First, the United States Parole Commission’s acti ons did not deny Mr.

Kozelski his due process rights. The Commission’s revocation of credit for the time he spent on parole was authorized by 18 U.S.C. § 4210(b)(2) and 28 C.F.R. § 2.52(c)(2). See DeCuir v. United States Parole Comm’n , 800 F.2d 1021, 1023 (10th Cir. 1986) (“The Commission must order forfei ture of street time whenever a parolee is convicted of a new offense punishable by a term of imprisonment.”); Harris v. Day , 649 F.2d 755, 758-60 (10th Cir. 1981) (“the parol ee who has been convicted of a new crime automatically forfeits the time he spent on parole”). The Ninth Circuit, whose laws apply because Mr. Koz elski was in California -2- of habeas corpus in the district court pursuant to 28 U.S.C. § 2241, arguing the United States Parole Commission’s denial of credit for time he spent on parole after he was returned to prison for various violati ons of his parole conditions raises issues of due process and double jeopardy. Finding Mr. Kozelski’s claims unsupportable, the district court denied his applic ation and dismissed his case on October 31, 1997.

On December 4, 1997, pursuant to 28 U.S.C. § 1915(a )(3), the district court denied Mr. Kozelski’s motion to proceed on appeal w ithout paying this court’s filing fee because the appeal was not taken in goodfaith. Pursuant to Federal Rule of Appellate Procedure 24(a), Mr. Kozelski nowasks this court to grant him leave to file his appeal in forma pauperis

.
After carefully reviewing the record, we find the d istrict court properly denied Mr. Kozelski’s application for a writ of hab eas corpus. 1 Furthermore, weduring the relevant time period, has ruled that the decision to revoke credit for the

time spent on parole falls within the discretion of the Commission. See Rizzo v. Armstrong , 921 F.2d 855, 861 (9th Cir. 1990). In revoking M r. Kozelski’s street time after providing a parole revocation hearing, the Commission acted well within its authority and discretion. Furthermore, the regulations provide the Commission with discretion to delay executing a warrant or summons after a violation is reported. 28 C.F.R. § 2.44(b). There fore, the Commission did not forfeit its authority to issue a warrant and revoke credit for the time Mr. Kozelski spent on parole simply, as he argues, because it fi rst tried to resolve the problem by modifying the terms of his parole. Second, parole determinations are not considered cr iminal punishment for purposes of double jeopardy analysis, see Kell v. United States Parole Comm’n , 26 F.3d 1016, 1020 (10th Cir. 1994), so Mr. Kozelsk i’s double jeopardy argument lacks merit.

-3- agree that this appeal was not taken in good faith. Therefore, pursuant to § 1915(a)(3) and Rule 24, we DENY Mr. Kozelski leave to proceed in forma pauperis and DISMISS his appeal.

Entered for the Court

WADE BRORBY United States Circuit Judge