* This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. This 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 

### OCT 2 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ISTVAN KELE,

Petitioner - Appellant,

v. UNITED STATES PAROLE COMMISSION,

Respondent - Appellee. No. 97-1092 (D. Ct. No. 96-M-1708) (D. Colo.)

ORDER AND JUDGMENT *
Before TACHA, BALDOCK, and LUCERO, Circuit Judges.
After examining the briefs and the appellate record , this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered sub mitted without oral argument. Pro se petitioner appeals from an order of the dist rict court dismissing petitioner’s petition for a writ of habeas corpus b rought pursuant to 28 U.S.C.2

§ 2241. On appeal, petitioner argues that the dist rict court was biased and that the district court erred by denying appellant’s mot ion for the recusal of the magistrate judge and the trial judge. Petitioner f urther alleges that the district court erred in failing to appoint counsel, in holdi ng that the Parole Commission had sufficient evidence to conclude that petitionerwas an accessory to a crime, and in failing to require the Parole Commission to credit previous prison time to the sentence imposed in this parole revocation. Fi nally, petitioner argues that the district court erred in determining that the Parole Commission had not arbitrarily imposed petitioner’s applicable guideline sentence. We affirm. Petitioner in this action has filed numerous applic ations for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner wa s originally convicted and sentenced on September 11, 1973 to a term of life i mprisonment for armed bank robbery, murder, and related crimes. Petitioner wa s initially paroled on November 22, 1989, and was to remain under the juri sdiction of the United States Parole Commission for life. After a hearing on a c harge of unauthorized possession of a firearm, the United States Parole C ommission revoked petitioner’s parole on February 6, 1992. The United States Court of Appeals for the Ninth Circuit reversed that parole revocation in a habeas proceeding. Kele v. United States Parole Commission , 1993 WL 478937 (9th Cir. 1993). Following revers al by the Ninth Circuit, petitioner was released on De cember 6, 1993 after serving3

26 months. In September 1995 in Van Nuys, Californ ia, petitioner assisted Glen Rogers in disposing of the body of a woman murderedby Rogers. On November 17, 1995, the United States Parole Commission issue d a warrant charging petitioner with parole violations consisting of a f ailure to maintain regular employment, violation of the law as an accessory to the murder, and failure to report to his parole officer. A parole revocation hearing was held at which the hearing examiner considered petitioner’s defenses a nd written statement, the testimony of law enforcement officers involved in t he investigation of the murder, and the testimony of petitioner’s parole officer. The hearing examiner found at that time that petitioner had committed criminal co nduct for which the sentencing range was 52 to 64 months and recommended that peti tioner be ordered to serve 60 months. Petitioner was notified on April 16, 19 96, that his parole had been revoked. In this habeas proceeding, petitioner challenges va rious actions of the district court that he claims require us to reverse the order of the district court dismissing this action. Initially, relying on a se ries of determinations by the district court related directly to this case, petit ioner alleges that both the magistrate judge and the district court judge were biased and that petitioner’s motions to recuse should have been granted. We hav e reviewed the record in this case thoroughly and find this argument meritless. There is no suggestion in this4

record that there was any bias or reason to recuse on the part of either the magistrate judge or the district court judge. Cons truing petitioner’s allegations liberally, as we must in the case of a pro se litig ant, all of the reasons cited by the petitioner as a basis for the allegation of bias re late to requests for continuances and other matters directly related to the expeditio us disposition of petitioner’s motions and other filings. Even construing these a llegations liberally, they cannot form the basis for an allegation of bias or unfair treatment. At most, they challenge the exercise of discretion by the magistr ate judge and the district court in handling the case. We review these allegations for an abuse of discretion and find that there is no abuse under the circumstances of this case. Petitioner further alleges that the district court violated his constitutional rights by failing to appoint counsel after repeated requests. This claim on appeal is without merit. The rule of this circuit is thatno absolute right to counsel exists in habeas corpus actions because such actions are c ivil, not criminal, proceedings. United States v. Masters , 484 F.2d 1251, 1253 (10th Cir. 1973). There is n o constitutional right to counsel in a civil case; th e determination of whether to appoint counsel in a civil case is left to the soun d discretion of the district court. Shabazz v. Askins , 14 F.3d 533, 535 (10th Cir. 1994). Under the cir cumstances of this case, the district court did not abuse its discretion in refusing to appoint counsel. Petitioner here has made no showing of any fundamental unfairness that5

would even colorably impinge on due process rights. Petitioner contends on appeal that the district cou rt erred in concluding that there was a rational basis for the Parole Commissio n’s determination that petitioner violated the law as an accessory to the murder committed by Rogers. The record contains an abundance of evidence upon w hich the Parole Commission appropriately relied to make its determination thatMr. Rogers committed the crime of murder, that the petitioner was aware of t he murder, and that petitioner was an accessory to the murder. When there is a rational basis for the Parole Commission’s determination in the record, this court will not reverse that decision in the absence of a showing that it was arbitrary, capricious, or an abuse of discretion. Kele v. United States Parole Commissio n , 26 F.3d 1016, 1019 (10th Cir. 1994) (citation omitted). The order of the di strict court contains a thorough recitation of the facts upon which it relied in fin ding that the decision of the Parole Commission was not arbitrary, capricious, oran abuse of discretion. We agree and rely on substantially the evidence relied upon by the district court. Finally, petitioner argues that the district court erred in concluding that the Parole Commission did not act arbitrarily when it e xceeded the recommended sentencing range for petitioner’s salient factor sc ore. The Parole Commission is authorized to exceed the Sentencing Guidelines for good cause so long as written notice of the reasons relied upon for the departure are provided. 18 U.S.C.6

§ 4206(c). In this case, the Commission gave notic e of its action and stated that the upward departure was warranted because, in the judgment of the Commission, this petitioner represented a more serious risk tha n would be indicated by his salient factor score. The Commission cited petitio ner’s lack of good judgment. The combination of the gravity of the crime involve d in this case and the reasons given by the Parole Commission constitute a rationa l basis for departing from the Sentencing Guidelines. We agree with the district court that the Commission did not abuse its discretion in determining the appropr iate Sentencing Guideline
sentence. Petitioner alleges in this case that he should have been credited with the 25 months that he previously spent in custody pursuantto the parole revocation that was later reversed by the Ninth Circuit. The statu te contains no authorization directing the Commission to credit this previously served time. Thus, the district court correctly refused to hold that the Parole Com mission’s decision to deny credit was a failure to follow the law. There is n o basis for finding an abuse of discretion. This court notes that this is the latest in a serie s of repeated filings of petitions for habeas corpus by this petitioner. Pe titioner is notified specifically of7

the 1996 amendments to 28 U.S.C. § 2244 regarding s econd or successive habeas corpus applications. The order of the district cou rt is AFFIRMED and the appeal
DISMISSED

. ENTERED FOR THE COURT, Deanell Reece Tacha Circuit Judge