*

 This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicata and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions 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, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

Mr. Robert Kozelski is a federal prisoner. Acting pro se, he sought a writ
1

 First, the United States Parole Commission’s actions 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 forfeiture 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 parolee who has been

convicted of a new crime automatically forfeits the time he spent on parole”). 

The Ninth Circuit, whose laws apply because Mr. Kozelski 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 violations of his parole conditions

raises issues of due process and double jeopardy. Finding Mr. Kozelski’s claims

unsupportable, the district court denied his application 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 without paying this court’s

filing fee because the appeal was not taken in good faith. Pursuant to Federal

Rule of Appellate Procedure 24(a), Mr. Kozelski now asks this court to grant him

leave to file his appeal in forma pauperis.

After carefully reviewing the record, we find the district court properly

denied Mr. Kozelski’s application for a writ of habeas corpus.1 Furthermore, we
during 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 Mr. 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). Therefore, 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 first tried to resolve the problem

by modifying the terms of his parole.

Second, parole determinations are not considered criminal 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. Kozelski’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