OpenJurist

779 F2d 49 John Dennis Burley v. Calvin Edwards

779 F.2d 49

JOHN DENNIS BURLEY Petitioner-Appellant
v.
CALVIN EDWARDS, Respondent-Appellee.

85-1296

United States Court of Appeals, Sixth Circuit.

10/9/85

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

VACATED AND REMANDED

E.D.Mich.

ORDER

BEFORE: JONES, Circuit Judge; and WEICK and PECK, Senior Circuit Judges.

1

This case has been referred to a panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the briefs and record, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

2

In this action for habeas relief under 28 U.S.C. Sec. 2241, petitioner challenges a parole revocation decision of the United States Parole Commission. The district court denied the issuance of the writ and petitioner appeals. Appellee has responded. On appeal, petitioner moves for the appointment of appellate counsel.

3

Upon consideration, we find ourselves in disagreement with the district court's decision. In declining to review the factual underpinnings of the Commission's decision to revoke parole, the district court drew an analogy to review of parole release appeals, citing Farkas v. United States, 744 F.2d 37 (6th Cir. 1984). This is inapposite. Parole revocation considerations are separate and distinct from those involved in parole release cases. See, e.g., Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 9 (1979). Review of parole revocation is to be had pursuant to an 'abuse of discretion' standard. See Taylor v. United States Parole Commission, 734 F.2d 1152 (6th Cir. 1984). In declining to review the merits of this petition, the district court erred.

4

It appears therefore that clear error of the district court requires vacation of the judgment on appeal, Rule 9(d)(4), Rules of the Sixth Circuit,

5

It is ORDERED that the motion for counsel be denied and that the final order of the district court be and it is hereby vacated and remanded for further proceedings.