OpenJurist

5 F3d 546 McKoy v. United States Parole Commission Tr

Lucias Frank McKOY, Jr., Petitioner-Appellant,
v.
UNITED STATES PAROLE COMMISSION and T.R. Kindt, Warden,
Respondents-Appellees.

No. 93-6138.

United States Court of Appeals, Tenth Circuit.

Aug. 27, 1993.

5 F.3d 546
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

ORDER AND JUDGMENT1

Before TACHA, BALDOCK and KELLY, Circuit Judges.2

1

Mr. McKoy, appearing pro se and in forma pauperis, appeals from the dismissal of his habeas corpus petition, 28 U.S.C. 2241. We affirm.

2

Mr. McKoy was convicted in the District of Columbia Superior Court for forgery and sentenced to one to nine years on February 26, 1976. On April 28, 1978, he was released on parole. The full term date of his sentence was May 4, 1984. On April 14, 1980, while on parole, appellant was convicted of entering a bank to commit a felony and killing a pedestrian while fleeing authorities. This conviction resulted in a 45-year federal sentence.

3

Mr. McKoy argues that District of Columbia guidelines govern his parole proceedings throughout his entire incarceration. He relies on McCray v. United States Bd. of Parole, 542 F.2d 558 (10th Cir.1976), arguing that once the D.C. and federal crimes are aggregated, they should not be de-aggregated simply because the D.C. sentence has expired. Id. at 560. The D.C. guidelines do not govern his sentence. Mr. McKoy's parole violation consisted of a federal offense which was prosecuted independently and subject to federal parole guidelines. Id.

4

Nor is Mr. McKoy a member of the class of inmates under Cosgrove v. Thornburgh, 703 F.Supp. 995 (D.D.C.1988), because he is incarcerated pursuant to a federal offense, not a D.C. offense.

5

Finally, Mr. McKoy fails to show prejudice resulting from the delay in receiving his notice of action from the USPC. McDonald v. New Mexico Parole Bd., 955 F.2d 631, 635 (10th Cir.1991), cert. denied, 112 S.Ct.1968 (1992).

6

AFFIRMED.

1

This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir. R. 36.3

2

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 cause therefore is ordered submitted without oral argument