* This order is not binding precedent, except underthe doctrines of law of

the case, res judicata, and collateral estoppel. T he court generally disfavors the citation of orders; nevertheless, an order may be c ited under the terms and conditions of 10th Cir. R. 36.3.

** Counsel for Respondent-Appellees elected not to f ile a brief on appeal unless the court determined that a brief was necess ary. After examining the petitioner’s brief and the appellate record, the co urt has determined unanimously that Respondent-Appellees need not file a brief. W e have also determined unanimously that oral argument would not be of mate rial assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The cause is therefore ordered submitted without or al argument. 

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

### JAN 24 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

GERALD McKINNON,

Petitioner-Appellant, No. 04-3263

v. (D. of Kan.) N. L. CONNER, Warden; and UNITED STATES PAROLE COMMISSION,

Respondents-Appellees. (D.C. No. 02-CV-3418-RDR)

ORDER AND JUDGMENT *

Before KELLY , HENRY , and TYMKOVICH , Circuit Judges. **

Gerald McKinnon seeks review of the Order issued bythe United States District Court for the District of Kansas denying h is petition for a writ of habeas-2-

corpus filed pursuant to 28 U.S.C. § 2241. The district court declined to grant relief from the Notice of Action issued by the Unit ed States Parole Commission (Commission) denying parole. McKinnon alleged in h is petition to the district court that the Commission erred by relying on erron eous information in denying parole and improperly departed from the District of Columbia parole guidelines. On appeal, McKinnon argues the district court erredin rejecting these claims. We affirm the decision of the district court. Background The facts underlying this appeal are not in dispute . In March 1985, a judge in the Superior Court of the District of Columbia f ound McKinnon guilty of (1) assault with intent to kill while armed for shootin g a man in 1983 and (2) assault with a dangerous weapon for stabbing his girlfriendin 1984. The court sentenced him to a term of 5-15 years on the first conviction and a consecutive term of 1-3 years on the second. In March 1989, the District of Columbia Parole Boar d (Board) granted McKinnon parole to a work release program. While r esiding in a halfway house, he tested positive for cocaine and fled. McKinnon was subsequently returned to custody and the Board rescinded parole in October 1 989. He received a transfer to a different halfway house in April 1990 and waiv ed a parole hearing the following month. In August 1990, McKinnon was arre sted and later convicted of1 As noted by the district court, the Commission assu med responsibility for

parole matters involving D.C. offenders in August 1 998. -3- burglary while armed, assault with intent to kill w hile armed, mayhem while armed, and carrying a dangerous weapon after he twi ce stabbed and also cut the hand of the same woman that he had stabbed in 1984. At an initial parole hearing in July 1999 before the Commission, 1 the hearing examiner considered McKinnon’s criminal off enses and numerous disciplinary reports he received while incarcerated , as well as copies of certificates offered by McKinnon showing his vocati onal and counseling achievements. Applying the D.C. parole guidelines, the examiner calculated a base point score of eight, which indicated that par ole be denied and that a rehearing be held after 18-24 months. The examinerdetermined McKinnon was a dangerous risk for parole and recommended another h earing in 24 months. Thereafter, a second hearing examiner reviewed the initial recommendation and also concluded that parole should be denied. H owever, the second examiner recommended departing from the applicable guideline and postponing a rehearing until 60 months after the parole eligibility date, viewing McKinnon as “to an exceptional degree, . . . a homicidally vengeful cr iminal personality” who was “unlikely to improve the seriousness of the risk . . . to public safety” and indicating that McKinnon’s history of prison miscon duct and violent crime,-4-

including the fact that he twice assaulted the same woman, warranted the departure. The examiner also noted that the 1990 s tabbing occurred while McKinnon had “escaped from the halfway house.” The Commission adopted the recommendation of the se cond examiner and issued a Notice of Action in October 1999 denying p arole and continuing McKinnon to a rehearing in October 2004, after the service of an additional 60 months. The Notice mirrored the second examiner’s description of McKinnon’s character, found a departure from the parole guidel ines warranted for the same reasons, recounted McKinnon’s criminal conduct in d etail, and again noted that the 1990 stabbing occurred while he had “escaped.” McKinnon subsequently requested that the Commissionreconsider its decision and either grant parole or set a rehearing date within the 18-24 month guideline range, arguing that the Commission errone ously considered his status as a prison escapee in 1990 when in fact he had not be en adjudicated as such. The Commission denied the request, finding numerous oth er factors supported the decision. However, in February 2003, the Commissio n issued a corrected Notice of Action, replacing “escaped from the halfway hous e” with “left the halfway house.” Discussion-5-

McKinnon now appeals the district court’s denial of his petition asserting two arguments. First, he argues that the court imp roperly rejected his claim that the Commission erred in refusing to reconsider its decision following proof that he had not been an adjudicated escapee in 1990. Se cond, he claims that the court erred by finding that the Commission correctly appl ied the regulations applicable to D.C. offenders. As indicated by the district court in its thorough Order, the standard of review in a habeas corpus action of a federal parol e determination is limited. A federal court will not overturn a decision by the C ommission “unless there is a clear showing of arbitrary and capricious action or an abuse of discretion.” Sotelo v. Hadden , 721 F.2d 700, 702 (10th Cir. 1983) (citing Dye v. United States Parole Comm’n , 558 F.2d 1376, 1378 (10th Cir. 1977). “The inqui ry is not whether the Commission’s decision is supported by the preponder ance of the evidence, or even by substantial evidence; the inquiry is only w hether there is a rational basis in the record for the Commission’s conclusions embo died in its statement of reasons.” Misasi v. United States Parole Comm’n , 835 F.2d 754, 758 (10th Cir. 1987). Reconsideration. McKinnon first challenges the Commission’s failure to reconsider his parole status after being informed t hat it had erroneously indicated that he had been an escapee at the time he committe d the 1990 crimes. Though-6-

the Commission later issued a corrected Notice of A ction replacing the term “escaped,” it did not reopen McKinnon’s case becaus e of the existence of “so many other factors” justifying the decision to deny parole. These factors include, as indicated by the Notice of Action, McKinnon’s si gnificant history of violent crime separate from the disputed escape and a serio us record of prison misconduct. After reviewing the record and the Not ice of Action, we agree with the district court that a rational basis existed fo r the Commission’s decision not to reconsider McKinnon’s status and therefore that the Commission did not abuse its discretion. Departure. McKinnon also asserts the Commission erred by departing from the applicable D.C. parole guideline, which ca lled for a rehearing after 18- 24 months. Petitioner claims the guidelines are ma ndatory. The district court, however, correctly relied on case law holding that the particular circumstances of a prisoner’s history may warrant departure from the guidelines. See Ellis v. District of Columbia , 84 F.3d 1413, 1419–20 (D.C. Cir. 1996) (holding that Board has discretion to depart from guidelines); McRae v. Hyman , 667 A.2d 1356, 1357 (D.C. 1995) (same). The Commission, which assumed parole responsibilities for D.C. code prisoners in 1998, also has discretion to depart from its own guidelines. See Skinner v. United States Parole Comm’n , 2002 WL 458993, *2 (D.D.C. 2002) (unpublished opinion). Therefore, we agree with th e district court and-7-

consequentially hold that the Commission did not ab use its discretion in departing from the guidelines. Conclusion The decision of the district court dismissing the p etition for habeas corpus is AFFIRMED. Entered for the Court Timothy M. Tymkovich Circuit Judge